Madison Hotel v. Hotel and Rest Empl

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 1997 Decided November 7, 1997

No. 96-7270

Madison Hotel,

Appellee

v.

Hotel and Restaurant Employees, Local 25,

AFL-CIO,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01433)

Mady Gilson argued the cause for the appellant. David
M. Silberman and Francis R. Sheed were on brief.

Jonathan W. Greenbaum argued the cause for the appel-
lee.

Before: Sentelle, Henderson and Randolph, Circuit
Judges.

Opinion for the court filed by Circuit Judge Henderson.

Dissenting opinion filed by Circuit Judge Randolph.

Karen LeCraft Henderson, Circuit Judge: Appellant Ho-
tel and Restaurant Employees Local 25 (Union) seeks rever-
sal of the district court's summary judgment vacating two
awards of the Arbitrator in the Union's favor. Because we
agree with the district court that the awards exceeded the
scope of the Arbitrator's authority, we affirm the judgment.

The facts, as found by the Arbitrator, are undisputed. In
July 1992 the Madison Hotel (Hotel) eliminated its food
service bus positions and shifted bus responsibilities to its
waiters. The Union, which represented a bargaining unit
that included the Hotel's waiters and bus employees, filed a
grievance on behalf of the laid-off employees. On July 24,
1992 the grievance was submitted to arbitration pursuant to
the collective bargaining agreement.

On January 2, 1994 the Arbitrator issued a decision in favor
of the grievants. In the decision the Arbitrator framed the
"issue" as follows:

Whether the Hotel violated the Agreement by its
abolishment of the Bus Employee position, its transfer of
the duties of the Bus Employees to other positions and
its layoff of the Grievants in July 1992 and, if so, what is
the appropriate remedy?

JA 19. The Arbitrator balanced the Hotel's management
rights under the collective bargaining agreement 1 against

__________
1 The "Management Rights" provision of the agreement grants
the Hotel "the sole right to direct and control the employees,
including the right to layoff, promote and transfer." JA 32. Con-
struing this language, the Arbitrator concluded "it properly may be
implied in the absence of express restrictions elsewhere in the
Agreement, that the Hotel can reassign duties from one position to
another, even to the extent of completely eliminating one position."
Id.

"those provisions which are of great importance to the em-
ployees who have worked at the Hotel for many years, i.e.
provisions which afford employees rights in the matters of
seniority, classification, layoff projections, retention of seniori-
ty following a layoff, etc," JA 32.2 He concluded: "For the
Hotel to take the drastic action of not just laying off employ-
ees during the period of slack business, as contemplated by
the Agreement, but to instead completely eliminate their
positions and reassign substantially all of their remaining
duties to another position, the Hotel must demonstrate a
legitimate business reason, i.e., a reason beyond mere 'slack-
ness of business,' " a showing he determined the Hotel had
not made. JA 32. Accordingly, the Arbitrator ordered the
following remedy:

The Hotel is directed to reinstate the Grievants to
their former positions and to make them whole for all
losses, including seniority, attributable to their improper
layoff. Pursuant to the Parties [sic] agreement to bifur-
cate this proceeding, the Parties are directed to attempt
to resolve this matter and, if unsuccessful, either Party
may return this matter to the Arbitrator for further
proceedings with respect to the remedial aspects only.

JA 36.

__________
2 The Arbitrator specifically cited section 12.2(a) of the collective
bargaining agreement which provides:

(a) It is recognized that the principle of seniority shall
normally be followed when it becomes necessary to layoff [sic]
employees due to slackness of business.

JA 78. Section 12.2(b) explains section 12.2(a):

(b) That is, normally, the employee on duty in the station in
which the reduction is being made having a shorter period of
continuous service shall be laid off before any other employee
having a longer period of continuous service; and preference to
laid off employees shall be given in reemployment within the
particular station or category.

Id.

When it turned out that none of the grieving bus employees
desired reinstatement,3 the Hotel took the position that the
dispute was at an end while the Union insisted that the
Arbitrator's award required that the bus positions be reestab-
lished and filled by new employees. On December 14, 1994
the Union wrote the Arbitrator requesting "clarification" of
the matter. After receiving a response from the Hotel, the
Arbitrator decided by letter dated February 6, 1995 that,
despite the mootness of the bus employees' grievance, the
Hotel was required to reestablish the positions because his
original decision treated the abolition of positions and the
layoff of the grievants as separate elements in both the
statement of the "issue," which characterized them as distinct
violations of the agreement, and the remedy, which "necessar-
ily" contemplated that the positions be reestablished before
the employee grievants were reinstated. The Arbitrator then
concluded:

At the point of offering each identified Grievant rein-
statement to the restored Bus Employee positions, if any
such offer to fill one of these restored positions is not
accepted by a Grievant, such restored position becomes a
vacancy subject to being filled in accordance with the
applicable provisions of the Agreement. A restored posi-
tion cannot be eliminated solely because a Grievant elect-
ed not to accept the offer to be reinstated in such
position.

JA 39.

On April 18, 1995 the Union filed an action in the district
court to enforce the Arbitrator's award. On February 13,
1996 the district court dismissed the action for lack of juris-
diction, concluding it was "not ripe for adjudication" because
the Arbitrator had "not issued a final remedial order." 955
F. Supp. at 2.

__________
3 Most of the grievants had accepted a monetary award in lieu of
reinstatement pursuant to a settlement in an unrelated employment
discrimination action against the Hotel. Other grievants had ob-
tained employment on the Hotel's staff of waiters.

On June 6, 1996 the Arbitrator issued a final remedial
order, reaching the same conclusion as he had in the Febru-
ary 6, 1995 letter. The Arbitrator again asserted that his
statement of the "issue" in his original (January 2, 1994)
decision treated separately the abolition of positions and the
layoff of the grievants. He then characterized the original
remedy as "an attempt to recreate the status quo ante the
Hotel's violation of the Agreement," namely "restaurant and
Room Service facilities which operated with Bus Employees,"
JA 48, and observed that "the Hotel never has returned to
the status quo ante," JA 49. The Arbitrator determined that
his original decision had "necessarily found that the bargain-
ing unit employees generally, as well as the specific individu-
als who filed the grievance, have a seniority right to have as
many positions in the bargaining unit as possible in which to
bump in the event of an economic layoff pursuant to the
provisions of Article 12, Section 12.2(a)" of the collective
bargaining agreement. JA 48. According to the Arbitrator,
"[t]he Union, as the representative of all of the unit employ-
ees, has an interest in protecting the seniority rights of all of
the unit employees and preserved its right to do so in this
case by raising in this grievance the issue of the abolishment
of the classification as well as the layoff of the particular
Grievants." JA 48. Finally, the Arbitrator stated: "The
Hotel ... has not identified any 'changed circumstances',
other than the passage of time, nor has the Hotel identified
any legitimate business reasons which occurred since the
classifications improperly were abolished which after-the-
violation business reasons, arguably, would mitigate against a
remedial order requiring the Hotel to reinstate the classifica-
tion and to fill it until such time as the Hotel has a proper
justification for abolishing it." JA 49. The Arbitrator then
issued the following final award:

The Hotel is directed to reinstate the Bus Employee
classification for its restaurant outlets and for its Room
Service operations and to fill the number of Bus Employ-
ee positions in each area which existed at the time of the
layoff and to operate with such Bus Employee classifica-

tions until it can demonstrate an appropriate basis, under
the Agreement, to abolish such positions.

JA 49.

On June 20, 1996 the Hotel filed an action to vacate the
Arbitrator's award and the Union counterclaimed for enforce-
ment. On cross-motions for summary judgment, the district
court granted judgment in the Hotel's favor on December 17,
1996, concluding that the Arbitrator "exceeded the scope of
his jurisdiction, both by deviating from the issues submitted
for arbitration and by issuing an award that does not draw its
essence from the parties' agreement." Madison Hotel v.
Hotel & Restaurant Employees Local 25, 955 F. Supp. 1, 3
(D.D.C. 1996). The Union appeals the judgment. We con-
clude that the district court correctly held the Arbitrator's
final award went beyond the scope of his authority, which was
limited to arbitrating the laid-off bus employees' grievance.4

The "scope of review of an arbitrator's award interpreting a
collective bargaining agreement is extremely narrow."
American Postal Workers Union v. United States Postal
Serv., 52 F.3d 359, 361 (D.C. Cir. 1995) (citing United Steel-
workers of America v. American Mfg. Co., 363 U.S. 564, 567
(1960); United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 578 (1960); United Steelwork-
ers of America v. Enterprise Wheel & Car Corp., 363 U.S.
593, 597 (1960)). " '[A] labor arbitration award must be
enforced if the arbitrator acts within the confines of his
jurisdiction and his award draws its essence from the parties'
collective bargaining agreement; this is so even when a
reviewing court disagrees with the arbitrator's judgment on
the merits.' " United States Postal Serv. v. National Ass'n of
Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987) (quoting
Northwest Airlines v. Air Line Pilots Ass'n, 808 F.2d 76, 78

__________
4 Because we affirm on this ground we need not address the
district court's alternative holding, that the award did not draw its
essence from the collective bargaining agreement. Nor do we
express any opinion on the merits of the Arbitrator's interpretation
of the contract based on the rights of the Union and non-bus
employees.

(D.C. Cir. 1987), cert. denied, 486 U.S. 1014 (1988)). Never-
theless, " 'arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which
he has not agreed so to submit.' " AT&T Technologies, Inc.
v. Communications Workers of Am., 475 U.S. 643, 648 (1986)
(quoting United Steelworkers v. Warrior & Gulf, 363 U.S. at
582); see Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 165
(D.C. Cir. 1981) (citing United Steelworkers v. Warrior &
Gulf, 363 U.S. at 582) ("[A]rbitration is, however, a matter of
contract, and the contours of the arbitrator's authority in a
given case are determined by reference to the arbitral agree-
ment."). Thus, "[t]here is no duty to arbitrate matters not
subject to the arbitration agreement, and no authority on the
part of arbitrators to consider matters not necessary to the
resolution of disputes actually submitted." Williams v. E.F.
Hutton & Co., 753 F.2d 117, 119 (D.C. Cir. 1985) (citing
Davis, 667 F.2d at 165). "In determining the scope of an
arbitrator's authority we look to two sources: the collective
bargaining agreement, and the submission of the parties to
the arbitrator." Washington-Baltimore Newspaper Guild,
Local 35 v. Washington Post Co., 442 F.2d 1234, 1236 (D.C.
Cir. 1971); see also Piggly Wiggly Operators' Warehouse,
Inc. v. Piggly Wiggly Operators' Warehouse Indep. Truck
Drivers Union, Local No. 1, 611 F.2d 580, 584 (5th Cir. 1980)
("However, once the parties have gone beyond their promise
to arbitrate and have actually submitted an issue to an
arbiter, we must look both to their contract and to the
submission of the issue to the arbitrator to determine his
authority."). Accordingly, we now examine the arbitration
provisions in the collective bargaining agreement and the
grievance as submitted by the Union to the Arbitrator to
determine the intended scope of the arbitration.

We first consider the parties' agreement. "[T]he question
of arbitrability--whether a collective-bargaining agreement
creates a duty for the parties to arbitrate the particular
grievance--is undeniably an issue for judicial determination.
Unless the parties clearly and unmistakably provide other-
wise, the question of whether the parties agreed to arbitrate
is to be decided by the court, not the arbitrator." AT&T

Technologies, 475 U.S. at 649. The agreement here provided
only very generally for arbitration of "a grievance or misun-
derstanding aris[ing] out of and during the term of [the]
agreement" provided the grievance is not first resolved by the
"joint grievance subcommittee." Collective Bargaining
Agreement s 17.1 (filed July 9, 1996 in district court as
attachment 1 to defendant's Answer & Counterclaim). The
issue the Arbitrator ultimately resolved below--whether the
Union or its non-busing members have a right to reestablish-
ment of the bus positions--seems to come within the broad
class of subjects arbitrable under the agreement. We must
next look at the grievance as submitted by the parties to the
Arbitrator to determine how it further limits the scope of the
arbitration.

The Union commenced the arbitration on July 24, 1992,
filing with the Arbitrator a letter addressed to the Hotel's
Managing Director which stated that the Union was "oppos-
ing and taking to arbitration the action taken by your estab-
lishment against the above captioned employee." Arbitration
Letter (filed Sept. 12, 1997) (emphasis added.) The caption
identified the grievant "employee" as "Bus employees/Local
25 members." Id. Thus, the letter manifests that the griev-
ance was taken to arbitration only on behalf of the bus
employees in Local 25 and not on behalf of the Union itself or
of non-bus employees, as the district court concluded.5

The Union contends the letter is irrelevant because it is an
"informal" document largely ignored by the parties them-
selves. The Arbitrator, however, apparently considered the
letter of significance, describing the nature of the grievance
by reference to it and noting in the first sentence of his
original decision that its filing on July 24, 1992 was "on behalf
of" each of the individually named grieving bus employees.
JA 18. Nevertheless, even without the letter we would be
bound to conclude, based on the Arbitrator's decisions, that
arbitration was sought on behalf of the named individual

__________
5 The arbitration letter was filed with this court after oral argu-
ment and was not before the district court.

grievant bus employees only and that its scope was limited
thereby.

If there is in fact no written submission to the Arbitrator
specifying the issue to be resolved, the scope of arbitration
must be determined from the conduct of the parties. Matte-
son v. Ryder Sys. Inc., 99 F.3d 108, 114 (3d Cir. 1996);
International Chem. Workers Union, Local No. 566 v. Mobay
Chem. Corp., 755 F.2d 1107, 1110 (4th Cir. 1985); Ficek v.
Southern Pac. Co., 338 F.2d 655, 656 (9th Cir. 1964), cert.
denied, 380 U.S. 988. Here the parties' conduct in pursuing
the arbitration, insofar as it is discernible from the Arbitra-
tor's determinations, manifests an intent, at least at the time
of the submission and original hearing, to limit arbitration to
a resolution of the individual grievants' rights.

The Arbitrator's original decision plainly recites that the
grievance was "filed ... on behalf of" the eight named
grievants, as we noted above, and that each grievant "was
employed as a Bus Employee at the Madison Hotel." JA 18.
In the decision the Arbitrator identified the abolition of
positions and the layoffs (as well as the transfer of duties) as
a single "issue" for which he needed to ascertain a single
"appropriate remedy," JA 19. He resolved the issue by
recourse to the reasonable expectation of a classification's
laid-off employees (here the bus employees) that they would
be recalled when business improved and the frustration of the
expectation "if the classifications completely are eliminated at
the time of the layoff." JA 33. Significantly, however, the
decision made no mention of the rights or expectations of
employees in other classifications not subject to layoff and
elimination, such as the non-bus unit employees here on
whose rights the Arbitrator based his determination in his
final remedial order that the remedy remained in force
despite the departure of all of the grieving bus employees.
Finally, the remedy the Arbitrator originally fashioned simply
directed the Hotel "to reinstate the Grievants to their former
positions and to make them whole for all losses, including
seniority, attributable to their improper layoff." JA 36 (em-
phasis added). In short the entire focus of the decision was
the grievance of the laid-off bus employees. Nothing in the

original decision suggests that the Arbitrator or the parties
intended the arbitration to extend beyond settling that griev-
ance and fashioning a remedy, if appropriate, for the griev-
ants.

Despite the undisputed and limited scope of his original
decision, the Arbitrator purported to construe its language
post hoc to expand the arbitration to encompass the relief
granted in his final award. As noted above, he reinterpreted
the statement of issue in the original decision to make rees-
tablishment of busing positions and layoff of the grievants
separate issues. In addition, the Arbitrator's February 6,
1995 letter decision concluded that the original remedy "nec-
essarily intended that the Hotel reinstate the Bus Employee
classification for the requisite number of positions equivalent
to the number of Bus Employee positions which existed
before the improper elimination of the classification and the
subsequent layoff of the incumbent Bus Employees." JA 39.
The June 6, 1996 final order went further and, as we stated
earlier, characterized the original decision as having "neces-
sarily found" that "the bargaining unit employees general-
ly"--not only the laid-off bus employees on whose behalf the
grievance was expressly brought--had seniority rights in the
abolished positions and that the Union, "as the representative
of all of the unit employees," had an interest in protecting
those rights through arbitration. JA 48. This broad con-
struction of the arbitration's scope is at odds with the Arbi-
trator's original view that it was limited to the bus employees'
grievance--a view he acknowledged in his later two decisions.

In his February 6, 1995 letter, the Arbitrator expressly
recognized that "[t]he remedy set forth in the [January 2,
1994] Opinion contemplated reinstatement of, and a make
whole award to, the identified Grievants only." JA 39 (em-
phasis in original). In the same letter the Arbitrator also
confirmed that the intent of the parties to the arbitration had
been to provide a remedy for the grievant employees alone.
See JA 39 ("[N]othing in this Arbitration proceeding raised,
or was intended to resolve, any issue with respect to any
potential remedy to any individuals other than the identified
Grievants."). JA 39. Similarly, in his June 6, 1996 order, the

Arbitrator acknowledged that "in finding the violation, [he]
balanced Management's right to manage, including the right
to determine staffing, against the Grievants' seniority rights,"
not the rights of other employees. JA 48 (emphasis added).
It is clear, then, that throughout the proceeding the Arbitra-
tor adhered to the view that he and the parties conducted the
arbitration, at least up through the time of the original award,
as limited to resolving the grievance filed on behalf of the
laid-off bus employees. Given his undisputed perception of
the arbitration's limited scope at the time of the initial award,
we cannot credit the Arbitrator's subsequent usurpation of
authority to arbitrate the rights of non-bus (non-grieving)
employees, and through them of the Union itself, and to issue
a remedy for the breach of those rights. Such a remedy
necessarily exceeds the scope of the arbitration brought and
maintained on behalf of the laid off bus employees, as the
Arbitrator himself perceived it.

We are aware that an arbitrator's interpretation of the
scope of the submission generally receives the same defer-
ence accorded his interpretation of the collective bargaining
agreement. See El Dorado Technical Servs., Inc. v. Union
General De Trabajadores de P.R., 961 F.2d 317, 321 (1st Cir.
1992); Richmond, Fredericksburg & Potomac R.R. v. Trans-
portation Communications Int'l Union, 973 F.2d 276, 280
(4th Cir. 1992); Pack Concrete, Inc. v. Cunningham, 866 F.2d
283, 285 (9th Cir. 1989); High Concrete Structures, Inc. of
N.J. v. United Elec. Radio & Mach. Workers of Am., Local
166, 879 F.2d 1215, 1219 (3d Cir. 1989); Cement Divs., Nat'l
Gypsum Co. v. United Steelworkers of Am., Local 135, 793
F.2d 759, 765 (6th Cir. 1986). And we have, accordingly,
accepted the Arbitrator's original view, as he consistently
characterized it throughout, that the arbitration was brought
on behalf of and to provide a remedy for the named grievants
only--a view that accords with the text of the submission
letter and which we must assume reflects the intent of the
parties as expressed in their briefs and at the hearing.
"Judicial deference to arbitration, however, does not grant
carte blanche approval to any decision an arbitrator might
make." Piggly Wiggly Operators' Warehouse, Inc., 611 F.2d

at 583. "[T]he courts are neither entitled nor encouraged
simply to 'rubber stamp' the interpretations and decisions of
arbitrators." Matteson, 99 F.3d at 113. They can and do
decline enforcement of awards if an arbitrator exceeds his
authority by arbitrating issues not submitted by the parties.
See, e.g., Matteson, 99 F.3d at 113-15; Hardin's Bakery, Inc.
v. Retail, Wholesale, & Dep't Store Union, 877 F.2d 1541,
1544-45 (11th Cir. 1989); John Morrell & Co. v. Local Union
304a of the United Food & Commercial Workers, 913 F.2d
544, 559-61 (8th Cir. 1989), cert. denied, 500 U.S. 905; Bowa-
ter Carolina Co. v. Rock Hill Local Union No. 1924, 871 F.2d
23 (4th Cir. 1989); Courier-Citizen Co. v. Boston Electrotyp-
ers Union No. 11, 702 F.2d 273, 280-82 (1st Cir. 1983); cf.
Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 164-68 (D.C.
Cir. 1981) (holding that arbitrator exceeded authority under
limited arbitration clause in employment contract). We do so
here. We cannot defer to the Arbitrator's ultimate assertion
that the arbitration encompassed the abolition of the classifi-
cation apart from the rights of the named grievants and that
his original award "necessarily" contemplated remedies for
non-grievants. The Arbitrator's post hoc position cannot be
"rationally derived" from his contemporaneous view of the
parties' submission as limited to the grievants' rights and
remedies. See Richmond, Fredericksburg & Potomac R.R.,
973 F.2d at 280; High Concrete Structures, 879 F.2d at 1219.

Because the Arbitrator exceeded the arbitral authority
conferred by the parties, the judgment of the district court
vacating the February 6, 1995 and June 6, 1996 arbitral
awards is

Affirmed.

Randolph, Circuit Judge, dissenting: My colleagues be-
lieve the arbitrator's remedy--the hotel shall restore the
classification it unilaterally abolished--was outside the scope
of the arbitration. In support, they point to the union's letter
starting the arbitration, and to the arbitrator's initial opinion.
I have five points in opposition.

First, the union's letter signaling the beginning of arbitra-
tion tells us nothing of particular significance. It states that
"pursuant to our collective bargaining agreement," the union
"is opposing and taking to arbitration the action taken by
your establishment against the above-captioned employee."
Letter from Richardson to Jacques of 7/24/92, at 1 (italics
added). Now we know that the grievance was not just for
one employee, so right from the start the letter loses any
claim to being the definitive guide to the scope of the arbitra-
tion that eventually followed.

Little wonder then that the union treats its letter as
unimportant. The hotel did so too, and said as much at oral
argument. The letter was not before the district court, it was
not part of the record before us, and when my colleagues
asked for a copy during argument, the parties were not at all
sure they could find one.

The complaint, according to the union's letter, is merely
"Improper Layoff." Id. There is no elaboration, no citation
to any part of the labor contract, nothing. How then can one
say on the basis of this letter that the arbitrator misinterpret-
ed the scope of the issues? The arbitrator listened to the
parties, he read their submissions, he heard their evidence.
And he presumably knew the customary manner in which
union and management treat such informal proceedings. We
decidedly do not.

Second, considerations such as those just mentioned are
partly behind the settled law that an arbitrator's interpreta-
tion of the scope of the issues submitted to him for arbitration
gets the same deep judicial bow as an arbitrator's interpreta-
tion of a collective bargaining agreement. See, e.g., Sheet
Metal Workers' Int'l Ass'n Local Union No. 359 v. Madison
Indus., 84 F.3d 1186, 1190 (9th Cir. 1996); El Dorado Techni-

cal Servs. v. Union General de Trabajadores de Puerto Rico,
961 F.2d 317, 321 (1st Cir. 1992); Lattimer-Stevens Co. v.
United Steelworkers of America, Dist. 27, Sub-Dist. 5, 913
F.2d 1166, 1170 (6th Cir. 1990); Mobil Oil Corp. v. Indepen-
dent Oil Workers Union, 679 F.2d 299, 302 (3d Cir. 1982);
Waverly Mineral Products v. United Steelworkers of Amer-
ica Local No. 8290, 633 F.2d 682, 685-86 (5th Cir. 1980).
This rule of deference also rests on federal labor policy,
judicial economy, and the Supreme Court's directive that
"when the subject matter of a dispute is arbitrable, 'procedur-
al' questions which grow out of the dispute and bear on its
final disposition are to be left to the arbitrator." United
Paperworkers Int'l Union v. Misco, 484 U.S. 29, 40 (1987)
(citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543,
557 (1964)).

If an arbitrator's interpretation gets the "greatest defer-
ence imaginable," Utility Workers Union of America, Local
246, AFL-CIO v. NLRB, 39 F.3d 1210, 1216 (D.C. Cir. 1994),
I see no plausible ground for setting aside this arbitrator's
view of what was before him. Certainly the grievance letter
cannot shoulder such a heavy load.

Which brings me to my third point. All indications point
in favor of the arbitrator's version of the scope of this
arbitration. Even if we were on a level, no-deference playing
field, I would find the arbitrator's view far more persuasive
than the majority opinion's. Consider the context. The hotel
did two things: it announced an across-the-board layoff of its
bus employees and it abolished the bus classification. Both of
the hotel's actions were therefore in play.

The "on behalf of" language--viewed by my colleagues and
the district judge as critical--comes from the first paragraph
of the arbitrator's initial opinion. Now, it seems to me the
person best situated to pronounce on the import of those
words is not a judge, but the arbitrator who wrote them.
And here is what the arbitrator thought. From the second
paragraph of his opinion onward, the arbitrator treats the
hotel's unilateral abolishment of the bus employee position as
a chief topic of dispute between the parties. This is compel-

ling evidence of what the parties believed they were arbitrat-
ing. A court cannot rightly claim to be giving deference to an
arbitrator when it reaches out so far to overturn him.

My fourth point is that to restrict the scope of arbitration
to the union's opening grievance letter is to adopt a formal
arbitration pleading requirement, judicially monitored--some-
thing like, "The scope of the union's first letter defines the
scope of the arbitration." Yet I had thought informality was
one of the hallmarks of this sort of non-judicial dispute
resolution. The approach my colleagues adopt, if it were to
have any lasting impact (I cannot imagine that it will), means
that no longer will the arbitrator hear the parties out, consid-
er the evidence they wish to present, and make a considered
determination of the scope of the issues before him. Instead
he will examine only the initial grievance letter, much in the
manner of a common law judge in Blackstone's time. Such a
regime, I can say with no exaggeration, flies in the face of,
contradicts, deviates from, upsets, disregards, conflicts with,
tosses aside, ignores and repudiates a large portion of the law
of labor arbitration from the Steelworkers Trilogy on down.

Indeed, such a regime would impose upon arbitration prac-
tice procedural requirements even stricter than the more
formal rules governing the trial of a federal civil case. Con-
sider Federal Rule of Civil Procedure 15(b): "When issues
not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings." Here the union
and the hotel "tried" the issue of the classification abolish-
ment and the arbitrator issued his findings and conclusions
about that issue in his initial award. And so, if this had been
a district court case, the union's grievance letter--its "com-
plaint"--would be deemed to have raised that issue. It is
utterly incomprehensible that arbitration proceedings should
be more regimented.

This brings me to my fifth and final point. My colleagues
say that the arbitrator's remedy of restoring the bus classifi-
cation fell outside the issues the parties arbitrated and came
about only "post hoc." This is doubly mistaken. In his initial

award the arbitrator held, for instance, that "the Hotel violat-
ed the layoff, seniority and classification provisions of the
Agreement ... insofar as it eliminated completely the Bus
Employee classification, laid off all of the Bus Employees and
transferred the substantial remaining Bus Employee duties to
the Waiters .... Consequently, the Hotel is directed to
restore the Bus Employee position, to reinstate the laid off
Bus Employees and to make them whole for all losses attrib-
utable to the improper layoff." J.A. 31. Having found, as an
initial matter, that the hotel violated the contract by eliminat-
ing the classification, the arbitrator simply followed elementa-
ry logic in ordering the hotel to restore the classification. It
is an old rule that the scope of the violation determines the
scope of the remedy.

The majority's other error is in supposing that the arbitra-
tor's rulings after his initial award may be dismissed as
merely "post hoc." After the initial decision, the parties
returned to the arbitrator for clarification. Parties some-
times do the same thing in this court. The arbitrator issued
an opinion stating that the bus classification had to be re-
stored. Even then the district court did not think the arbi-
tration proceedings had ended and so, at the district court's
direction, the parties returned to the arbitrator again for a
final ruling and again the arbitrator ordered the hotel to
restore the classification. The majority's post hoc rationale
thus embodies a legal principle--whatever the arbitrator says
first in the course of ongoing arbitration proceedings is all
that counts. There is probably no need to point out that in
all the annals of arbitration law, this marks the first appear-
ance of such a legal principle. If there is something, anything
to be said in favor of it, the majority has neglected to
enlighten us.