                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0331n.06

                                       Case No. 19-4241

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                            Jun 08, 2020
INTERNATIONAL ASSOCIATION OF SHEET                    )                 DEBORAH S. HUNT, Clerk
METAL, AIR, RAIL AND TRANSPORTATION                   )
WORKERS, TRANSPORTATION DIVISION,                     )
                                                      )        ON APPEAL FROM THE
       Petitioner-Appellee,                           )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE NORTHERN
v.                                                    )        DISTRICT OF OHIO
                                                      )
PORT AUTHORITY TRANS-HUDSON                           )
CORPORATION,                                          )
                                                      )                            OPINION
       Respondent-Appellant.                          )




BEFORE:        COLE, Chief Judge; McKEAGUE and KETHLEDGE, Circuit Judges.

       COLE, Chief Judge. The Port Authority Trans-Hudson Corporation (“PATH”) is party to

a collective bargaining agreement (“CBA”) with its union employees which requires that

grievances brought on behalf of PATH employees be submitted to arbitration. Here, the union

filed a grievance on behalf of PATH tower operator David Shenberger and the dispute proceeded

to an arbitrator for resolution. But when the arbitrator ruled in favor of the union, PATH refused

to comply with the award. The union then turned to the federal courts to enforce the award, and

the district court granted the union summary judgment. We affirm.
Case No. 19-4241, Int’l Ass’n of Sheet Metal, Air, Rail and Transp. Workers, Transp. Div. v. Port
Auth. Trans-Hudson Corp.


                                                 I.

       Under the CBA, PATH employees are allotted vacation and sick leave benefits in

accordance with their seniority, with employees who have been at PATH longer receiving more

leave. This case began when Shenberger objected to the computation of his leave benefits.

       Shenberger began working for PATH in 1993. After battling an ever-worsening case of

pulmonary fibrosis for roughly a decade, he was forced to retire in 2009, at which point he accepted

a disability annuity. In 2016, after receiving a lung transplant, Shenberger successfully sought

reinstatement with PATH, which hired him as a tower operator in March 2017. Upon his

reinstatement, however, PATH calculated Shenberger’s leave benefits as if he were a new

employee, rather than one who had worked at PATH for 16 years.               For Shenberger, this

determination made a significant difference. Were he to receive credit for his 16 years of service

prior to his retirement, he would be entitled to 29 days of vacation leave, 65 days of full-pay sick

leave, and 195 days of half-pay sick leave each year. But when PATH classified him as a new

employee, that entitlement dropped to 13 days of vacation leave, 5 days of full-pay sick leave, and

10 days of half-pay sick leave.

       Shenberger was represented by his union, the International Association of Sheet Metal,

Air, Rail and Transportation Workers, Transportation Division (“SMART-TD”). SMART-TD

filed a grievance on Shenberger’s behalf, contending that he was entitled to the status of a 16-year

employee for purposes of calculating his benefits. PATH took a different view, arguing that the

CBA precluded Shenberger from receiving credit for years of employment that were interrupted

by his retirement. In accordance with the terms of the CBA, parties brought their dispute to a

neutral arbitrator, the Public Law Board No. 7551. (“the Board”). The Board ultimately agreed



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Case No. 19-4241, Int’l Ass’n of Sheet Metal, Air, Rail and Transp. Workers, Transp. Div. v. Port
Auth. Trans-Hudson Corp.


with SMART-TD’s interpretation of the CBA and issued an award sustaining the claim and

directing PATH to make Shenberger whole consistent with the terms of the CBA.

       PATH did not comply with the award, so SMART-TD filed a petition in the United States

District Court for the Northern District of Ohio seeking to enforce it. PATH then filed a

counterclaim seeking to vacate the award. After considering the parties’ arguments and a

stipulated administrative record, the district court granted summary judgment for SMART-TD.

PATH timely appealed.

                                                 II.

       In a dispute over an arbitration award, we review the district court’s decision to grant

summary judgment de novo. Totes Isotoner Corp. v. Int’l Chem. Workers Union Council/UFCW

Local 664C, 532 F.3d 405, 410 (6th Cir. 2008) (internal citation omitted). Our focus, however, is

on the arbitrator’s analysis, not the district court’s. Bhd. of Locomotive Eng’rs & Trainmen v.

United Transp. Union, 700 F.3d 891, 898 (6th Cir. 2012) (internal citation omitted). And in

reviewing the arbitrator’s analysis, we are “exceedingly deferential” to the arbitrator’s decision.

Mich. Family Res., Inc. v. Serv. Emps. Int’l Union Local 517M, 475 F.3d 746, 755 (6th Cir. 2007)

(en banc). When a losing party asks us to review an arbitration award issued pursuant to a CBA,

our review is “very limited.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509

(2001) (per curiam). We focus on questions of “procedural aberration.” Mich. Family, 475 F.3d

at 753 (quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 40, n. 10 (1987)).

We resist intervening even when the arbitrator makes “serious, improvident, or even silly errors in

resolving the merits of the dispute” so long as the arbitrator was “arguably construing or applying

the contract,” did not act outside its authority by resolving a dispute not committed to arbitration,



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Auth. Trans-Hudson Corp.


and did not commit fraud or otherwise act dishonestly in issuing the award. Id. (internal citations

and quotation marks omitted).

       Here, PATH does not contend that the claim should not have been arbitrated or that the

Board acted dishonestly in any way in resolving the dispute. Rather, it argues that the Board was

not arguably construing the terms of the CBA when it issued the award.

       Judicial consideration of the merits of an arbitration award is “the rare exception, not the

rule,” to the point where we “must tolerate serious arbitral errors.” Id. (internal quotation marks

omitted). Our strong tendency not to delve into the merits of an arbitrator’s decision, however,

has its limits. “[W]e cannot ignore the specter that an arbitration decision could be so ignorant of

the contract’s plain language as to make implausible any contention that the arbitrator was

construing the contract.” Id. (internal citation and quotation marks omitted). In the inquiry as to

whether the arbitrator “arguably construed” the contract, only “the most egregious awards” will

be vacated. Id. Ultimately, we ask a single question: “did the arbitrator appear to be engaged in

interpreting the agreement or agreements before [it]?” Bhd. of Locomotive Eng’rs and Trainmen,

700 F.3d at 901 (internal citations and quotation marks omitted). If so, we will enforce the award.

Id.

                                                III.

       To determine whether this is one of the rare instances where we could disturb an arbitration

award for the arbitrator’s failure to arguably construe a contract, we start with the relevant terms

of the CBA. Regarding the calculation of sick and vacation leave benefits, Article VIII(B)(2) of

the CBA provides:

       In determining the vacation allowance to which an employee is entitled, length of
       service shall be measured from the initial date of uninterrupted employment by
       PATH or any of its predecessors. For this purpose, sick leave in excess of six (6)

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Auth. Trans-Hudson Corp.


       months (unless by reason of on-job injury) and leave of absence in excess of thirty
       (30) days shall not be counted.

(R. 14-1, PageID 144.) Article IX(A)(4) of the CBA establishes an identical method for calculating

seniority for purposes of determining sick leave. Finally, Article II(A)(9) of the CBA addresses

the “seniority rights” of employees who, like Shenberger, retire on a disability annuity before the

age of 65. (Id., PageID 134.) It provides that such an employee “shall not have his seniority status

and rights terminated[.]” (Id.)

       The Board considered each of those provisions in determining that Shenberger was entitled

to credit for the 16 years that he spent working at PATH before his disability. (R. 14-1, PageID

244–46.) The Board determined that Article II’s guarantee that an employee does not lose seniority

rights when he retires because of a disability and is subsequently rehired meant that Shenberger

was entitled to vacation and sick leave benefits in accordance with his 16 years of service at PATH.

It accordingly interpreted the leave computation provisions in Articles VIII and IX of the CBA to

mean that Shenberger’s uninterrupted period of employment from 1993 until 2009 counted as

service time, while the time spent retired on the disability annuity—the interruption in that

employment—did not.

       PATH ardently disputes this interpretation, contending that the term “uninterrupted

employment period” unambiguously excludes time spent by an employee at PATH before that

employee retires with a disability. In PATH’s view, once Shenberger retired on disability, his

period of employment was interrupted and therefore cannot entitle him to greater leave benefits

upon being rehired and that the seniority clock started at zero when he was rehired.

       That argument closely tracks the argument that PATH made to the Board during the

arbitration proceeding, and it is a plausible—if not persuasive—construction of the CBA. But it


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Case No. 19-4241, Int’l Ass’n of Sheet Metal, Air, Rail and Transp. Workers, Transp. Div. v. Port
Auth. Trans-Hudson Corp.


is not the only one. The CBA does not contain language providing that the retention of seniority

rights upon return from disability does not apply to leave calculations, and it does not expressly

limit a period of “uninterrupted employment” to the period between an employee’s last interruption

and the present. In fact, it does not define the term at all. In short, the terms of the CBA do not

foreclose the Board’s interpretation. In its role as an arbitrator, the Board relied on provisions

within the CBA to ascertain the proper approach to an issue that the agreement does not explicitly

address. Put differently, the Board’s analysis clearly constitutes an interpretation of the CBA.

And, under our precedent, that alone is enough to foreclose us from disturbing the award the Board

issued.

          We affirm the district court’s judgment in favor of SMART-TD.




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