UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2400
VERIZON CORPORATE SERVICES CORPORATION,
Plaintiff - Appellee,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:08-cv-00097-PJM)
Argued: October 28, 2009 Decided: January 25, 2010
Before WILKINSON and NIEMEYER, Circuit Judges, and Anthony J.
TRENGA, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Koslow, CWA, AFL-CIO, Rockville, Maryland, for
Appellant. Julia McAree Broas, JONES DAY, Washington, D.C., for
Appellee. ON BRIEF: Willis J. Goldsmith, JONES DAY, New York,
New York, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The district court set aside an award entered pursuant to a
labor arbitration between the Communication Workers of America
(the “Union”) and Verizon Corporate Services Corporation
(“Verizon”) on the ground the arbitrator “ignored” “critical
language in the Collective Bargaining Agreement” and
“introduce[d] some of his own brand of industrial justice.” The
court concluded that the award was beyond the scope of the
arbitrator’s authority.
After a careful review of the record and consideration of
counsels’ arguments, we affirm.
I
When, in December 2004, Verizon began transferring the
tasks of transporting, unboxing, and checking inventory items
from higher paid “storekeepers” to lower paid “assistant
technicians” at its assembly facility in Martinsburg, West
Virginia -- the Verizon Advanced Resources and Technology Center
(“VARTAC”) -- the Union filed a grievance, arguing that the work
should have remained assigned to storekeepers, as provided for
in a 2001 letter agreement between Verizon’s vice president,
Michael Millegan, and the Union (the “Millegan Letter”). The
Millegan Letter, agreed to after the Union had likewise objected
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when Verizon had assigned the tasks to assistant technicians in
2000, provided that storekeepers would perform the tasks.
In 2003, some two years after the Millegan Letter, the 2000
collective bargaining agreement (“CBA”) between Verizon and the
Union expired, and the parties negotiated a new one. During
negotiations, Verizon proposed broadly expanding the duties of
assistant technicians, but the Union rejected the proposal.
Nonetheless, the parties agreed to a “letter of understanding”
(the “AT Letter”), which became part of the 2003 CBA, assigning
to assistant technicians at company assembly facilities (the
VARTAC plant) the duties to “transport[], uncrate[] and
inventor[y] equipment.”
The 2003 CBA also included a “Continuation Letter,” which
provided that all “local agreements” that were valid under the
prior 2000 CBA and “which ha[d] not been separately renegotiated
by the parties in 2003 negotiations,” would continue in effect
for the life of the 2003 CBA. The Continuation Letter also
provided that local agreements that had been renegotiated during
the 2003 CBA negotiations would “speak for themselves.”
Beginning in December 2004, Verizon began reassigning the
tasks of transporting, unboxing, and checking inventory to
assistant technicians, in accordance with the AT Letter that was
part of the 2003 CBA. The Union filed a grievance over
Verizon’s action, contending that the tasks should have remained
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with storekeepers, as provided in the Millegan Letter, because,
it asserted, the Millegan Letter survived the 2003 CBA pursuant
to the Continuation Letter. When the parties were unable to
resolve the grievance, they selected arbitrator James J. Sherman
to resolve it.
After concluding that the Millegan Letter was an
enforceable local agreement, arbitrator Sherman concluded that
the Millegan Letter survived the 2003 CBA, reasoning as follows:
Management argued that regardless of the status of Mr.
Millegan’s local agreement, that agreement became null
and void in 2003 when the parties entered into another
master contract. The Arbitrator cannot agree. The
evidence shows that even though the Millegan letter
was discussed, and Management expressed its opinion
that the letter did not qualify as a binding
agreement, there is nothing in this new (2003)
contract which indicated that both parties accepted
this view.
On the contrary, the contract appears to say
quite the opposite. Section C of Article 41 contains
two paragraphs which appear to incorporate the letter
and intent contained in Mr. Millegan’s letter.
The third paragraph states, in essence, that all
local agreements that were valid and enforceable under
the 2000 contract will continue in effect for the life
of the new agreement. Then the forth [sic] paragraph
makes the same point in slightly different language.
The arbitrator then noted that, because “[h]e could not say with
the necessary confidence that either side prevailed with a
preponderance of the evidence,” he would rely on Verizon’s
conduct following the 2003 CBA to rule in favor of the Union.
He determined that the evidence slightly favored the Union due
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to the fact that Verizon had continued to assign the disputed
tasks to storekeepers for some period after the 2003 CBA became
effective, demonstrating that “[m]anagement did not repudiate
Mr. Millegan’s local agreement immediately or even soon after
the new [2003] contract went into effect.” The arbitrator
thereupon entered an award directing Verizon to comply with the
terms of the Millegan Letter.
Verizon commenced this action to have the award vacated,
and the Union filed a counterclaim to have it enforced. On
cross-motions for summary judgment, the district court vacated
the award.
While the district court recognized that the Millegan
Letter was a binding agreement, it concluded that the Letter did
not survive the 2003 CBA by reason of the AT Letter and the
Continuation Letter, which were part of the 2003 CBA. First,
the court noted that the arbitrator erroneously referenced
“section C of Article 41” to make a reference to the
Continuation Letter when no such section existed. And on the
merits, the court noted that the arbitrator failed to recognize
that the parties, as part of the 2003 CBA, entered into the AT
Letter, which in fact reassigned the disputed tasks to assistant
technicians. The Continuation Letter explicitly indicated that
any local agreements that had been renegotiated would “speak for
themselves.” Because the duties of assistant technicians
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addressed in the Millegan Letter were renegotiated in 2003,
resulting in the AT Letter, the court concluded that the
language of the AT Letter set aside task assignments made in the
Millegan Letter. It characterized the arbitrator’s discussion
about Verizon’s delay in reassigning the tasks as nothing more
than the arbitrator “implementing his own brand of industrial
justice.”
From the district court’s judgment vacating the award, the
Union filed this appeal.
II
When a collective bargaining agreement calls for resolution
of a dispute through arbitration, the judicial role in reviewing
the arbitration award is a limited one:
Because the parties have contracted to have disputes
settled by an arbitrator chosen by them rather than by
a judge, it is the arbitrator’s view of the facts and
of the meaning of the contract that they have agreed
to accept. Courts thus do not sit to hear claims of
factual or legal error by an arbitrator as an
appellate court does in reviewing decisions of lower
courts. . . . [A]s long as the arbitrator is even
arguably construing or applying the contract and
acting within the scope of his authority, that a court
is convinced he committed serious error does not
suffice to overturn his decision.
United Paperworkers International Union v. Misco, Inc., 484 U.S.
29, 37-38 (1987). Mere disagreement with an arbitrator’s
construction of the labor contract is insufficient for a
reviewing court to overturn the arbitrator’s decision. United
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Steelworkers of America v. Enterprise Wheel & Car Corp., 363
U.S. 593, 598-99 (1960). Accordingly, federal courts do not
judge the merits when reviewing labor arbitrations but simply
examine whether the arbitrator actually delivered what was
called for by the parties’ agreement -- the arbitrator’s
interpretation of the collective bargaining agreement.
Mountaineer Gas Co. v. Oil, Chemical & Atomic Workers
International Union, 76 F.3d 606, 608 (4th Cir. 1996) (“Above
all, we must determine only whether the arbitrator did his job -
- not whether he did it well, correctly, or reasonably, but
simply whether he did it” (citing Remmey v. PaineWebber, Inc.,
32 F.3d 143, 146 (4th Cir. 1994))).
Even though an arbitrator’s decision is largely free from
review, courts must still review for instances in which an
arbitrator abdicates his duty and actually fails to construe the
collective bargaining agreement. Misco, Inc., 484 U.S. at 38
(“The arbitrator may not ignore the plain language of the
contract . . .”). Courts must thus assure themselves that an
arbitrator’s award “is grounded in the collective bargaining
agreement . . . ,” as the arbitrator has no authority to exceed
the scope of the parties’ agreement. Champion International
Corp. v. United Paperworkers International Union, AFL-CIO, 168
F.3d 725, 729 (4th Cir. 1999). When an arbitrator exceeds the
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scope of contractually conferred authority, a court is bound to
set aside the award:
[A]n arbitrator is confined to interpretation and
application of the collective bargaining agreement; he
does not sit to dispense his own brand of industrial
justice. . . . [H]is award is legitimate only so long
as it draws its essence from the collective bargaining
agreement. When the arbitrator’s words manifest an
infidelity to this obligation, courts have no choice
but to refuse enforcement of the award.
Enterprise Wheel & Car Corp., 363 U.S. at 597.
In this case, the arbitrator was bound to consider and
apply the relevant contractual provisions defining the duties of
assistant technicians, and the governing documents are not
disputed. After Verizon began assigning inventory tasks at
VARTAC to assistant technicians in late 2000, the parties
agreed, in 2001, to the Millegan Letter, under which the tasks
were reassigned to storekeepers, who were the higher paid
employees. The 2003 CBA, however, which included both the AT
Letter and the Continuation Letter, provided for the
reassignment of inventory tasks back to assistant technicians.
The parties expressly negotiated this change and memorialized it
in the AT Letter. That Letter provided that “[t]he duties of an
Assistant Technician will include the following: perform work
in connection with placement, rearrangement and removal of wire
and cable, and associated equipment in or on customers’
buildings and in Company Assembly facilities. In connection
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with these duties: . . . [t]ransports, uncrates and inventories
equipment.” (Emphasis added). And the Continuation Letter, in
turn, stated that local agreements that were “renegotiated
during 2003 negotiations will speak for themselves” and that
only prior local agreements that “ha[d] not been separately
renegotiated by the parties in the 2003 negotiations” would
continue to be applied. Thus, under the 2003 CBA, the parties
explicitly agreed to reassign to assistant technicians the tasks
that, under the Millegan Letter, had been assigned to
storekeepers.
In rendering his decision, arbitrator Sherman did not even
acknowledge the existence of the AT Letter, which was part of
the 2003 CBA, much less address its terms. Yet, the language of
the AT Letter explicitly addressed the grievance before him.
For this reason, we agree with the district court that the
arbitrator’s decision did not derive from the 2003 CBA when the
arbitrator failed to recognize and discuss a provision
explicitly addressing the disputed issue. This is an archetypal
case of an arbitrator ignoring the plain language of the CBA.
See, e.g., Champion International Corp., 168 F.3d at 730-31
(vacating arbitration award granting bonuses where no
contractual provision called for them); Mountaineer Gas Co., 76
F.3d at 608-10 (vacating arbitration award because the
arbitrator ignored plain language of the agreement by making an
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exception to the company’s substance abuse policy where none had
been provided by the contract language).
Accordingly, we affirm the judgment of the district court.
AFFIRMED
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