                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2005

Brentwood Med Assoc v. UMWA
Precedential or Non-Precedential: Precedential

Docket No. 04-1955




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          NO. 04-1955
                         ____________

           BRENTWOOD MEDICAL ASSOCIATES

                                                 Appellant
                                v.

           UNITED MINE WORKERS OF AMERICA

                         ____________

         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                  (D.C. Civil No. 03-cv-1258)
             District Judge: Hon. Arthur J. Schwab
                         ____________

                   Argued December 7, 2004

       BEFORE: AM BRO, and VAN ANTWERPEN, Circuit
          Judges and SHADUR,1 Senior District Judge



   1
    Honorable Milton I. Shadur, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
                  (Filed January 28, 2005 )

James A. Prozzi, Esq. (Argued)
Jackson Lewis LLP
One PPG Place, 28 th Floor
Pittsburgh, Pennsylvania 15222

Counsel for Appellant

Michael J. Healey, Esq. (Argued)
Douglas B. McKechnie, Esq.
Healey & Hornack, P.C.
1100 Liberty Avenue
The Pennsylvian, Suite C-2
Pittsburgh, Pennsylvania 15222

Counsel for Appellee
                        ____________

                          OPINION
                        ____________

VAN ANTWERPEN, Circuit Judge

       The Federal Arbitration Act codifies Congress’ desire
to uphold private arbitration agreements that produce prompt
and fair dispute resolution without involving the courts. In
furtherance of this interest, a court must scrupulously honor
the bargains implicit in such agreements and interfere only
when an award is severely problematic. See, e.g.,
Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220,

                              2
223 (1987). This appeal asks us to determine whether or not
an arbitration award should be upheld where an arbitrator
inexplicably cites language in his decision that cannot be
found in the relevant collective bargaining agreement.
Because we conclude that such a mistake, while glaring, does
not fatally taint the balance of the arbitrator’s decision in this
case, we affirm the decision of the District Court upholding
the award.

                    I. Factual Background

        Brentwood Medical Associates (“BMA”) and the
United Mine Workers of America (“UMWA”) are parties to a
collective bargaining agreement that covers the terms and
conditions of employment for a unit of employees at BMA’s
facility in Brentwood, Pennsylvania. This agreement provides
a mandatory grievance and arbitration procedure for disputes
between the parties. Arbitration of grievances is conducted
by an arbitrator chosen from a panel, and that arbitrator’s
decision “shall be final and binding upon the employees, the
Union and the Employer.” Joint Appendix (“J.A.”) at 48.
Under the agreement, an arbitrator is explicitly prevented
from “add[ing] to, subtract[ing] from, or modify[ing] in any
way any of the provisions, terms [or] conditions of [the]
Agreement.” Id.

       The grievance that gave rise to this appeal alleged that
BMA violated the collective bargaining agreement when it
refused to allow a union member to exercise her seniority
rights under Article VIII. In February, 2001, Ms. Denise
Cope (a member of UMW A) was offered the position of

                                3
Charge Entry Associate, for which she left her position as a
Phlebotomist. On November 11, 2002, BM A announced it
would be abolishing the Charge Entry Associate classification
effective November 15, 2002. Ms. Cope requested
permission to “bump”2 outside her classification of Charge
Entry Associate and return to her position as a Phlebotomist,
thereby displacing the least senior person in that
classification. This request was refused, and BMA instead
offered Ms. Cope the position of Front Office Clerk.3

       On November 14, 2002, Ms. Cope filed a grievance
with BMA pursuant to the collective bargaining agreement,
claiming that BMA had violated Article VIII, Sections 1, 2,
and 10.4 On February 3, 2003, BMA denied this grievance.

  2
    “Bumping” is the process by which an employee who had
less seniority than another is forced out so that a more senior
employee can take junior employee’s position and avoid layoff
himself. See Ostapowicz v. Johnson Bronze Co., 541 F.2d 394,
396 (3d Cir. 1976).
      3
     The arbitrator found that Ms. Cope had greater seniority
than twenty-eight of the thirty-five employees in the bargaining
unit. J.A. at 71.
  4
      Article VIII (Seniority) reads, in relevant part:

      Section 1. Seniority shall be defined as the years, months
and days an employee has worked with the Employer in the
bargaining unit since the employee’s last date of hire by the
Employer. . .

                                  4
BMA and UM WA then proceeded to binding arbitration
pursuant to Article XIV of the collective bargaining
agreement. Arbitrator John M. Felice was selected to conduct
the arbitration, and on August 6, 2003, he issued a decision
sustaining the grievance and ordering BM A to permit Ms.



        Section 2. The parties recognize the principal [sic] of
seniority as a factor in layoffs, recalls and certain types of
promotional opportunities provided the employees is otherwise
fully qualified. Seniority shall, however, apply only as expressly
provided for in this Agreement.

        Section 10. Layoff and Recalls. In the event that the
Employer determines to reduce the work force in classification
covered by this Agreement or to abolish a classification, the
Employer will, in its sole discretion, determine which positions
are to be affected and the number of employee positions to be
reduced, including the number of full time and part time
positions which will be affected in each classification and/or
department. The reduction will be accomplished in inverse
order of seniority in the classifications affected, provided that
the employees to be retained have the skill, qualifications, ability
and physical fitness to perform all of the work remaining in that
classification without training, and will assume the remaining
schedule. The Employer will send the Union a list of employees
laid off within twenty-four (24) hours of the layoff. The
Employer may exempt employees with special skills or abilities
from any reduction in force or layoff.

(emphasis added).

                                 5
Cope to exercise her seniority rights and bump the least senior
Phlebotomist. J.A. at 68-75. In that decision, the arbitrator
asked rhetorically why, if bumping was not permitted under
the collective bargaining agreement as BMA contended, was
the following language governing bumping present in Article
VIII, Section 10:

“. . . employees who exercise seniority rights and bump must
have the skill, qualifications, ability and physical fitness to
perform all of the work remaining in that classification. . .”

 J.A. at 73-4. This language does not exist in either Article
VIII, Section 10, or anywhere else in the collective bargaining
agreement.

       BMA filed a complaint with the United States District
Court for the Western District of Pennsylvania pursuant to
Section 301 of the Labor Management Relations Act of 1947,
as amended, 29 U.S.C. § 185 et seq, seeking to vacate the
award. The parties filed cross-motions for summary
judgment, and the District Court granted summary judgment
in favor of UMWA on March 12, 2004. Adopting the
appropriate deferential standard of review, the District Court
concluded that the parties had agreed that (1) an arbitration
award would be final and binding, and (2) the arbitrator’s
decision reached a rational result consistent with the terms of
the agreement. J.A. at 06-7.

          II. Jurisdiction and Standard of Review

       BM A filed a timely Notice of Appeal on April 5, 2004.

                               6
We have jurisdiction to review this final district court order
pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a district court’s decision resolving cross motions for
summary judgment. Teamsters Local 312 v. Matlack, Inc.,
118 F.3d 985, 994 (3d Cir. 1997), (quoting United Parcel
Service, Inc. v. Int’l Bhd. of Teamsters Local No. 430, 55 F.3d
138, 140 (3d Cir. 1995)).

        A collective bargaining agreement represents a
contractual accord reached between an employer and its
employees. If such a contract includes an arbitration clause, it
is assumed that the parties bargained for a grievance
resolution procedure in which an arbitrator would interpret the
agreement. It is thus not the role of a court to correct factual
or legal errors made by an arbitrator. Major League Umpires
Ass’n v. American League of Professional Baseball Clubs,
357 F.3d 272, 279 (3d Cir. 2004). A district court may
determine only whether or not an arbitrator’s award “draws its
essence” from the parties’ collective bargaining agreement,
United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc.,
484 U.S. 29, 36 (1987), and we apply this same standard in
reviewing the arbitration award. Pennsylvania Power Co. v.
Local Union No. 272 of the Int’l Bhd. of Elec. Workers, AFL-
CIO, 276 F.3d 174, 178 (3d Cir. 2001). Once a court is
satisfied that an arbitrator’s award draws its essence from a
collective bargaining agreement, it is without jurisdiction to
consider the award further.

      An award draws its essence from a collective
bargaining agreement if its interpretation can in any rational
way be derived from the agreement, viewed in light of its

                               7
language, its context, and any other indicia of the parties’
intention. United Transp. Union Local 1589 v. Suburban
Transit Corp., 51 F.3d 376, 379-80 (3d Cir. 1995). “As a
general rule, we must enforce an arbitration award if it was
based on an arguable interpretation and/or application of the
collective bargaining agreement, and may only vacate it if
there is no support in the record for its determination or if it
reflects manifest disregard of the agreement, totally
unsupported by principles of contract construction.” Exxon
Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357, 360
(3d Cir. 1993) (internal quotation marks omitted). Therefore,
we will not disturb an arbitration award “even if we find the
basis for it to be ambiguous or disagree[] with [the
arbitrator’s] conclusions under the law.” Citgo Asphalt
Refining Co. v. Paper, Allied-Indus., Chem. & Energy
Workers Int’l Union Local No. 2-991, 385 F.3d 809, 816 (3d
Cir. 2004), (quoting Stroehmann Bakeries, Inc. v. Local 776,
Int’l Bhd. of Teamsters, 969 F.2d 1436, 1441 (3d Cir.1992)).

                        III. Discussion

        There is a strong presumption under the Federal
Arbitration Act, 9 U.S.C. § 1 et seq., in favor of enforcing
arbitration awards. Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983). As such, an award
is presumed valid unless it is affirmatively shown to be
otherwise, and the validity of an award is subject to attack




                               8
only on those grounds listed in 9 U.S.C. § 10,5 or if
enforcement of the award is contrary to public policy. Exxon
Shipping Co., 993 F.2d at 360, (quoting W.R. Grace & Co. v.
Local Union 759, Int’l Union of Rubber Workers, 461 U.S.
757, 766 (1983)).

       BMA contends that the arbitrator exceeded his
authority when he added language to the collective bargaining
agreement supporting his conclusion that Ms. Cope could
bump a less senior employee in a different classification,


  5
      9 U.S.C. § 10 states, in relevant part:

(a) In any of the following cases the United States court in and
for the district wherein the award was made may make an order
vacating the award upon the application of any party to the
arbitration--
(1) where the award was procured by corruption, fraud,
or undue means;
(2) where there was evident partiality or corruption in the
arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in
refusing to postpone the hearing, upon sufficient cause
shown, or in refusing to hear evidence pertinent and
material to the controversy; or of any other misbehavior
by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not
made.

                                  9
which signals a violation of 9 U.S.C. § 10(a)(4). If this
alleged overstep by the arbitrator is the only leg that supports
his decision, it is within our discretion to vacate the award.
Therefore, the narrow issue before us is whether the
arbitrator’s conclusion is supported, in any way, by a rational
interpretation of the collective bargaining agreement. We
reiterate that it is our duty to resist the urge to conduct de
novo review of the award on the merits. See United
Paperworkers Union, 484 U.S. at 36 (we “are not authorized
to reconsider the merits of an award even though the parties
may allege that the award rests on errors of fact or on
misinterpretation of the contract.”). Rather, we ask merely
whether the parties to the collective bargaining agreement got
what they bargained for, namely an arbitrator who would first
provide an interpretation of the contract that was rationally
based on the language of the agreement, and second would
produce a rational award. BMA contends that the arbitrator’s
reference to the language not found in the collective
bargaining agreement fatally taints the award, because this
reference is essential to the arbitrator’s ultimate conclusion
and is inseparable from the remainder of the award. As such,
our focus must be on whether the arbitrator’s discussion can
still support the award if we excise the anomalous language.
We believe that it does provide such support.

       The arbitrator first stated that he was confronted with
contrary interpretations of Article VIII, Section 10 offered by
BMA and UM WA. As framed by the parties, the issue before
the arbitrator was essentially whether use of the plural term
“classifications” in Article VIII, Section 10 enables
employees affected by layoff to exercise their seniority rights

                              10
by bumping into another classification. After taking notice of
the fact that arbitrators generally hold seniority provisions to
be at the heart of any collective bargaining agreement, he set
about reviewing the agreement’s various provisions. The
arbitrator pronounced that a “conjunctive interpretation of
Article VIII of the [collective bargaining agreement] leads to
the inescapable conclusion that the parties have consistently
recognized seniority preference. . .” J.A. at 73. This is born
out by a review of the collective bargaining agreement.
Article VIII, Section 1, supra., expressly identifies seniority
in terms of the entire bargaining unit. Section 2 of that
Article goes on to say that seniority rights apply only as
expressly provided for in the agreement. This is a clear basis
upon which the arbitrator could have concluded that seniority
preference existed unit-wide.6 This alone provides ample
basis to uphold the award.

       In additional support for his conclusion, the arbitrator
cited several provisions of the agreement:

For example, Section 1 defines seniority as “bargaining unit-
wide” and not within classification. Section 2 provides that
the principle of seniority is a factor in layoffs, recalls and
certain types of promotional opportunities provided the
employee is fully qualified. Section 5 specifies that in filling


  6
    We cannot and do not pass judgment on the wisdom of the
arbitrator’s conclusion. All we are empowered to determine
here is whether or not his award draws its essence from the
collective bargaining agreement.

                               11
vacancies when the qualifications of two (2) or more
applicants are relatively equal, preference will be based on
seniority. Section 11, specifies that when the Employer
decides to affect a recall from layoff, it will “consider
employees with recall rights first within the classification
from which they were laid off, then by seniority, the most
senior first, based upon the position preferences on the
designated forms.” This proviso obviously entitles senior
employees to be recalled in reverse order of layoff to a
position other than to the position from which they were laid
off, provided they are qualified.

Id. Furthermore, he explained:

the language “in inverse order of seniority in the classification
affected” in Article VIII, Section 10 of the [collective
bargaining agreement] cannot be interpreted to prohibit senior
employees affected by a layoff from exercising their
“bargaining unit-wide” seniority rights and bump less senior
employees outside of their classification, provided they are
qualified.

J.A. at 74. The arbitrator concluded his review by noting that no provision
in Article VIII of the agreement would prevent bumping bargaining unit-
wide. J.A. at 75.

      After reviewing the totality of the arbitrator’s decision, we are
confident that his award does not rest solely upon the aberrant language
added by the arbitrator. While it is true that the clearest support for the



                                      12
arbitrator’s conclusion comes from the language he interpolated,7 there is
sufficient substance in the remainder of the discussion to pass the minimum
rationality threshold. Faced with what he perceived as an incongruity
between BMA’s position and the bargaining unit-wide seniority rights of
employees, the arbitrator attempted to construe together, and then give
effect to, all provisions of the agreement. While BMA may take issue with
his contractual interpretation, this is not sufficient to justify vacatur of the
award by this Court. See Major League Baseball Players Ass’n v. Garvey,
532 U.S. 504, 509 (2001) (per curiam) (“if an arbitrator is even arguably
construing or applying the contract and acting within the scope of his
authority, the fact that a court is convinced he committed serious error does
not suffice to overturn his decision.”) (internal quotations omitted).

       BMA’s entire argument rests on the arbitrator’s inexplicable
quotation of language that was not present in the agreement. Certainly, this
was a mistake. Moreover, this mistake clearly violates Article XIV, Section
1’s prohibition against the arbitrator adding to, subtracting from, or
modifying the agreement. Nonetheless, this error is insufficient to warrant


   7
      Our learned colleague reiterates in his dissent that it is
undisputed that the arbitrator modified agreement language in
violation of Article XIV, Section 1, and that the arbitrator
therefore exceeded his contractual authority. Had this been the
only basis for his conclusion, we would agree that vacatur is
appropriate. However, even if we were to kick out the “bum
leg” of the arbitrator’s award, there are still many others upon
which this award can stand. We do not agree with the dissent’s
assertion that, regardless of what other justifications there are
for his decision, the arbitrator’s single error alone allows us to
void the award in toto.

                                      13
vacation of the award. “Full-blown judicial review” of the arbitrator’s
decision would annul the bargain between BMA and UMWA for an
arbitrator’s construction of their agreement and replace it with a judicial
interpretation that was not bargained for. Stroehmann Bakeries, Inc., 969
F.2d at 1441. Only where there is manifest disregard for the agreement can
we override an arbitrator. Because the remainder of the justification for the
award offered by the arbitrator was capable of separation from the aberrant
language, his decision reflects an interpretation of the contract that is at
least minimally rooted in the collective bargaining agreement, and not his
“own brand of industrial justice.” United Paperworkers Intern. Union, 484
U.S. at 36. Consequently, the arbitrator’s error was harmless, since he
would have arrived at the conclusion he reached here, even absent the
discussion of the aberrant language. As such, our inquiry into the award
has reached its jurisdictional limit, and we must uphold it.

                                IV. Conclusion

         For the foregoing reasons, we affirm the decision of the District
Court.




                                       14
AM BRO, Circuit Judge, Dissenting




       I believe this case presents the rare situation in which it is
appropriate for our Court to vacate an arbitration award. Therefore, I
respectfully dissent.

        Although our review of arbitration awards is—as stated by my
colleagues in the majority—highly deferential, courts are nonetheless
“neither entitled nor encouraged to simply ‘rubber stamp’ the interpretations
and decisions of arbitrators.” Matteson v. Ryder Sys. Inc., 99 F.3d 108, 113
(3d Cir. 1996). The federal courts retain a significant role in the review of
labor arbitration awards and may vacate awards under certain
circumstances. Id. at 113–14. One such circumstance occurs when the
arbitrator shows “manifest disregard” for the terms of the collective
bargaining agreement (“CBA” or “Agreement”) at issue. See, e.g., Major
League Umpires Ass’n v. Am. League of Prof’l Baseball Clubs, 357 F.3d
272, 280 (3d Cir. 2004), cert. denied, ___ S.Ct. ___, 2005 WL 45841
(“[A]n award may be vacated if the arbitrator demonstrates manifest
disregard for the CBA.”); Newark Morning Ledger Co. v. Newark
Typographical Union Local 103, 797 F.2d 162, 165 (3d Cir. 1986) (“[I]n
that rarest case of manifest disregard of the [collective bargaining]
agreement, the [court] must draw the line.”) (internal quotation omitted).

       An arbitrator derives her/his authority from the terms of the CBA
and the scope of the issues submitted by the parties. Major League

                                     15
Umpires Ass’n, 357 F.3d at 279. In this case, the CBA provides that an
arbitrator’s decision is final and binding on the parties. CBA Art. XIV § 1
(Step 4). Importantly, the CBA also explicitly states that “[t]he arbitrator
shall not add to, subtract from, or modify in any way any of the provisions,
terms o[r] conditions of this Agreement.” Id. (emphasis added). Despite
this leave-no-doubt language, it is undisputed that, in rendering an
arbitration award in favor of the Union, the arbitrator modified the language
in the CBA to include a provision allowing for “bumping” where no such
provision exists in the actual text of the CBA.8 In doing so, the arbitrator
violated the provision of the CBA that prohibited him from modifying its
terms. He thus exceeded the scope of his contractually delegated authority.
Cf. Pennsylvania Power Co. v. Local Union No. 272, 276 F.3d 174, 179 (3d
Cir. 2001) (vacating an arbitration award because the arbitrator exceeded
his powers under the CBA by altering the CBA “in direct violation of [the
CBA’s] provision that he had no power to do so.”); see also 9 U.S.C.
§ 10(a)(4) (providing that a federal court may vacate an arbitration award
“where the arbitrators exceeded their powers, or so imperfectly executed
them that a mutual, final, and definite award upon the subject matter
submitted was not made.”). Because, “[s]imply stated, an arbitrator may not
venture beyond the bounds of his or her authority,” Major League Umpires
Ass’n, 357 F.2d at 279 (internal quotation omitted), I would vacate the
arbitration award on this ground alone.

      My colleagues in the majority recognize that the arbitrator’s
“inexplicable quotation” of language not in the CBA was a clear violation


  8
  In fact, the Union had unsuccessfully attempted to include a
bumping provision in the CBA when negotiating its terms.

                                     16
 of Article IV § 1 of that Agreement. They nevertheless conclude that the
arbitrator’s award cannot be vacated because it was rationally based on the
language of the CBA. I agree, of course, that an arbitration award must be
upheld if it is in “any rational way” related to the language of the
agreement. See, e.g., id. at 280. But I do not agree that this standard has
been met here.

        The arbitrator believed there was an incongruity between Brentwood
Medical Associates’ (“BMA”) position that senior employees had no right
to bump less senior employees in other work classifications and the
bargaining-unit seniority rights provided for in the CBA. J.A. at 74. In
resolving this purported incongruity and finding that the employee here
could exercise her seniority rights and bump an employee in another
classification, the arbitrator twice cited and discussed the language
regarding the right to bump that he wrote into the very section of the CBA
under review. Id. at 73–74. A comparison of the actual language of the
CBA with the language used by the arbitrator (shown in bold) highlights the
differences between the two.


                                          Actual Text of
      Text Used in
                              Page     Collective Bargaining      Section
  Arbitrator’s Decision
                                            Agreement




                                     17
                                              “The reduction will be
                                              accomplished in inverse
 “.. . em p l o y e es w ho                   order of seniority in the
 exercise seniority rights                    classifications affected,
 and bump must have the                       p r o v id e d t h a t t h e
 skill, q u a l i fi c at i o n s,            e m p l o ye e s t o be
                                      J.A.
 ability and physical                         retained must have the
                                     73,74                                   Art. VIII,
 fitness to perform all of                    skill, qualifications,
                                                                               § 10
 the work remaining in                        ability and physical
 that classifica tion... ”                    fitness to perform all of
                                              the work remaining in
                                              that classific ation
                                              without training, and
                                              will assum e the
                                              remaining schedule.”


       This added language informed the arbitrator’s belief (indeed it tipped
the balance) that the position BMA took in the arbitration was inconsistent
with the terms of the CBA, causing the arbitrator to question why language
governing bumping was included in the agreement if, as BMA asserted, an
employee whose classification was eliminated was not allowed to bump an
employee in another classification.9 There was but one problem—the

    9
    The arbitrator wrote: “[I]f, as [BMA] asserts, reductions
apply only ‘. . . in the inverse order of seniority in the
classifications affected. . .’”, why was the “following language
[inserted] to govern bumping, to wit: ‘. . . employees who
exercise seniority rights and bump must have the skill,
qualifications, ability and physical fitness to perform all of the

                                             18
language with which the arbitrator believed BMA’s position was
inconsistent was not part of the CBA.

         I do not agree with my colleagues in the majority that the arbitrator’s
reference, at the end of his decision, to the “‘plant-wide seniority’ system
. . . ingrained in Article VIII, Section 1 of the CBA”, J.A. at 75, is sufficient
to support a conclusion that the arbitrator’s award draws its essence from
the CBA notwithstanding his prior modification of the language of the
agreement. The CBA defines seniority as bargaining unit-wide only
generically as follows: “Seniority shall be defined as the years, months and
days an employee has worked with the Employer in the bargaining unit
since the employee’s last date of hire by the Employer.” CBA Art. VIII § 2
(emphasis added).
         The underlying dispute in this case concerned whether an employee
whose job classification had been abolished, and who was thus facing being
laid off, could bump a less senior employee in another classification. The
CBA contains a specific provision for “Layoff and Recalls,” see CBA Art.
VIII § 10, and, as discussed above, it is that section that the arbitrator
misquoted. The arbitrator’s award should not be upheld on the basis of the
general language regarding bargaining-unit seniority in Article VIII, Section
1, when the arbitrator first rewrote the more specific language regarding
layoffs that he should have been applying to resolve this dispute. To
forgive the arbitrator’s Humpty Dumpty approach to the specific provision
in play by referring to a general statement on seniority is akin to decreeing
that the general call for mercy expiates the specific commandment not to
kill.


work remaining in that classification . . . [?]” J.A. at 74.

                                       19
        Even assuming that the arbitrator’s added language could be
separated from the rest of his decision, the award should still be vacated.
When faced with the supposed disconnect between BMA’s position that
bumping outside of one’s own classification should not be allowed and the
bargaining-unit seniority rights outlined in the CBA, the arbitrator came
down in favor of allowing bumping across classifications. He noted that
there was no provision in Article VIII of the CBA, the section dealing with
seniority, that would prohibit bumping. He also found that bumping across
classifications was “consistent with arbitral authority which holds that, in
the absence of any contract provision, it is almost universally recognized by
arbitrators that senior employees who are governed by a ‘plant-wide
seniority’ system, such as is imagined in Article VIII, Section 1 of the
CBA[,] have the right to bump junior employees from their jobs in order to
avoid their own layoff, provided they can perform the work of the junior
employees.” Id. at 75 (internal quotation omitted).

       Far from there being an “absence of any contract provision,”
however, the CBA states that “[s]eniority shall . . . apply only as expressly
provided for in this Agreement.” CBA Art. VIII § 2 (emphasis added). In
implying a right to bump because no contract provision prohibited bumping
and because this result was consistent with general arbitration principles,
the arbitrator again exceeded the scope of his powers by ignoring the
CBA’s ban on applying seniority “only as expressly provided” in the
Agreement itself. Ignoring plain language—least of all language that set
the arbitrator’s authority— is a no-no of first rank. See United
Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987);
Pennsylvania Power Co., 276 F.3d at 178.



                                     20
       In sum, the arbitrator in this case directly contradicted the plain
language of the CBA and thus exceeded the scope of his powers by: (1)
altering the language of the Agreement to include an express right to bump
across classifications in defiance of the CBA provision prohibiting any
modification of its language; and (2) reading into the CBA a right to bump
because no provision of the CBA prohibited it in defiance of the CBA
provision stating that seniority rights may only be applied as the CBA itself
provides. To ignore the plain language of the CBA, and to rely on language
not contained in it in reaching his decision, are the opposite of issuing an
award that drew its essence from the CBA.

       Our deferential standard of review in labor arbitration cases may
mean that we uphold arbitration awards but for snow in August. But when
an arbitrator rewrites a collective bargaining agreement as he did here
(making manifest an utter disregard for the CBA’s actual words), or finds a
meaning to exist because it is not expressed, and we uphold either sleight-
of-hand, “deference” becomes a “rubber stamp.” If this arbitrator’s award
evades vacating, what award does not? I respectfully dissent.
