United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2009 Decided July 10, 2009
No. 08-7092
VERIZON WASHINGTON, D.C. INC.,
APPELLEE
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, AS
DESIGNATED AGENT AND REPRESENTATIVE FOR LOCAL 2336,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01460-PLF)
Stephen M. Koslow argued the cause for the appellant.
James B. Coppess was on brief.
Julia M. Broas argued the cause for the appellee. R. Scott
Medsker and Willis J. Goldsmith were on brief. Jacqueline M.
Holmes entered an appearance.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Separate concurring statement filed by Circuit Judge
HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: The
Communications Workers of America, AFL-CIO (CWA)
appeals from the district court’s order granting summary
judgment to Verizon Washington, D.C. Inc. (Verizon), vacating
and remanding an arbitration award. Verizon Washington, D.C.
Inc. v. Commc’ns Workers of Am., 569 F. Supp. 2d 121, 129
(D.D.C. 2008). Because we conclude that the arbitration award
“draws its essence from the collective bargaining agreement,”
United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36
(1987) (citation and quotation marks omitted), we reverse.
I.
Sometime in 1997, Verizon began to assign its Corporate
Voice Mail Group employees (Voice Mail Clerks) additional
duties. For a time, Verizon paid the Voice Mail Clerks extra for
performing the new duties but stopped doing so at some point
between 1998 and 2000. On December 9, 2001, the CWA filed
a grievance on behalf of the Voice Mail Clerks, asserting that
they were being unfairly treated in that they were performing the
duties associated with a higher position (RCMAC Clerk) but
were classified at, and paid the salary of, a lower position
(General Clerk).1 On March 6, 2002, Verizon denied the
1
A General Clerk is responsible for “the handling of orders and
preparation of reports, accessing multiple systems for inputting
retrieval of data on a computer, and heavy client interfacing at all
levels of management[.]” Opinion and Award of Arbitrator Susan T.
Mackenzie, Commc’ns Workers of Am., Local 2336 v. Verizon
Washington, D.C. Inc., CWA Case No. 2-04-21, at 8 (Feb. 28, 2006)
(quotations omitted) (Mackenzie Award). An RCMAC Clerk, on the
other hand, must “translat[e] . . . complex codes in switches . . . [,]
ensure that the changes made in one service do not affect other
services, [and] engage in time-sensitive projects and coordinating
work.” Id. at 10. The General Clerk position is “semi-skilled” while
3
grievance and the CWA appealed. During the grievance
process, Verizon conducted a job evaluation of the Voice Mail
Clerks and eventually, on June 2, 2003, determined that the
Voice Mail Clerk position was appropriately classified as a
General Clerk position. On July 28, 2003, the CWA submitted
its grievance to arbitration pursuant to Article 13 of the
collective bargaining agreement between Verizon and the CWA.
See General Agreement Between CWA and Verizon, Inc. at 18-
19 (Aug. 3, 2003) (CBA).
The dispute centers on Article 16B of the CBA, which sets
forth the procedure Verizon and the CWA must follow
“[w]henever the Company determines it appropriate to create a
new job title or job classification in the bargaining unit, or to
restructure or redefine an existing one.” CBA at 24. The
procedure is “the exclusive means by which [the CWA] may
contest the schedule of wage rates which [Verizon] sets for any
new, restructured, or redefined job title or classification.” Id. at
25. Section 1(e) of Article 16B allows the CWA to demand, “if
the parties are unable to reach agreement within sixty (60) days
following receipt of notice from [Verizon],”2 “that the issue of
an appropriate schedule of wage rates be submitted for
the RCMAC Clerk position is “technical.” Opinion and Award of
Arbitrator Paul F. Gerhart, Verizon Washington, D.C. Inc. v.
Commc’ns Workers of Am., Local 2336, Parties’ Case No. 2001-
91650, at 6 (May 30, 2007) (Gerhart Award).
2
Article 16B.1(a) of the CBA requires Verizon to “notify the
Union in writing of [a new] job title or classification and . . . furnish
a job description of the duties and the wage rates and schedules
initially determined for such job titles and classifications. . . .
Following such notice to the [CWA], [Verizon] may proceed to staff
such job titles or classifications.” CBA at 24. Article 16B.1(b) gives
the CWA, once notified, the right to “initiate negotiations concerning
the initial wage rates or schedules established by [Verizon].” Id.
4
resolution to a neutral third party,” that is, an arbitrator. Id.
Significantly, if the arbitrator devises a different schedule of
wage rates, “the new schedule shall be placed in effect
retroactive to the date the change or new job was implemented,
except that in no event shall the retroactive effect exceed 150
days.” Id. The parties are bound by the arbitrator’s decision.
After arbitration hearings were held on April 1, 2005, July
14, 2005 and October 20, 2005, an arbitrator issued an award on
February 28, 2006, concluding that Verizon “violate[d] Article
16.B by failing to give notice to [the CWA] and afford an
opportunity to negotiate over its assignment of duties to Voice
Mail Clerks outside of the scope of their General Clerk Job
Description, constituting a redefinition or restructure of the
existing job title for purposes of Article 16.B.” Opinion and
Award of Arbitrator Susan T. Mackenzie, Commc’ns Workers
of Am., Local 2336 v. Verizon Washington, D.C. Inc., CWA
Case No. 2-04-21, at 12 (Feb. 28, 2006) (Mackenzie Award).
Accordingly, the arbitrator directed Verizon to comply with
Article 16B’s notification and negotiations requirements within
60 days of the issuance of her award. Id. at 13.
Pursuant to the award, Verizon and the CWA began
negotiations but soon reached an impasse. The CWA, invoking
its right to “demand that the issue of an appropriate schedule of
wage rates be submitted for resolution to a neutral third party,”
CBA at 25, then requested arbitration at some point before
August 9, 2006. Another arbitrator heard the matter on
September 15, 2006 and issued his award eight months later, on
May 30, 2007.3 The arbitrator summarized the three issues as
3
Article 16B.1(f) provides in part:
At the request of either party, a hearing shall be held to
receive . . . evidence. Any such hearing shall be held
within thirty (30) days after the matter is referred to the
5
follows:
1. The threshold issue before the arbitrator is to
determine what discretion the Agreement affords
him in fashioning an award in this matter. That is, is
the arbitrator constrained to choose between the
positions of the parties as in “last offer” arbitration,
or is he free to identify and award some other
outcome in the matter?
2. The principal issue before the arbitrator is, of course,
to determine an award with respect to the appropriate
wage schedule for the Voice Mail Clerks.
3. Finally, the arbitrator must determine a remedy.
This will require the arbitrator to interpret the
language of Article 16B.1(f) which states that “in no
event shall the retroactive effect exceed 150 days.”
Did the drafters of the Agreement intend, as the
Company contends, that the new wage rate for the
Voice Mail Clerks must be effective no more than
150 days prior to the date of the instant arbitrator’s
award, or, pursuant to the Union’s interpretation,
that the revised wage rate must have effect 150 days
prior to [sic][4] the Union’s initial grievance, i.e.,
neutral third party. . . . A written decision as to the
appropriate schedule of wage rates will be rendered by
the neutral third party within sixty (60) days of the date
that the matter is referred for resolution. . . .
CBA at 25 (emphasis added).
4
The arbitrator misstated the CWA’s interpretation here.
December 9, 2001 is the date on which the CWA filed its initial
grievance, see Mackenzie Award at 4; Gerhart Award at 17, and the
CWA argued that it is to this date that the retroactivity award should
6
December 9, 2001?
Opinion and Award of Arbitrator Paul F. Gerhart, Verizon
Washington, D.C. Inc. v. Commc’ns Workers of Am., Local
2336, Parties’ Case No. 2001-91650, at 38-39 (May 30, 2007)
(emphasis added) (Gerhart Award). The arbitrator determined
that after two years of service, a Voice Mail Clerk should be
“allowed to apply for and immediately be promoted to the
Senior Voice Mail Clerk job title.” Id. at 54. He also held that
“[a]ll current Voice Mail Clerks with two or more years of
actual service in that title shall immediately be offered the
opportunity to upgrade to the Senior Voice Mail Clerk job” and
that any Voice Mail Clerk with two or more years of actual
service as of December 9, 2001 “shall receive a pay adjustment
reflecting the difference between what she (or he) actually
earned and what she would have earned had she been properly
classified as of that date.” Id. at 57 (emphasis omitted). In
setting the retroactivity award, the arbitrator reasoned as
follows:
. . . Inasmuch as the upgrade of experienced Voice Mail
Clerks should have taken place in 2001, the effective
date of the creation of the Senior Voice Mail job title
shall be December 9, 2001, the date of the Union’s
grievance in this matter. . . .
The arbitrator is mindful of the admonition in Article
16B.1(f) which asserts that “in no event shall the
retroactive effect exceed 150 days.” Had [Verizon] not
violated the Agreement as found by Arbitrator
Mackenzie, and had [it] properly notified [the CWA] of
reach back, see Gerhart Award at 17. The error is simply a scrivener’s
error, however, because the arbitrator correctly implemented the
CWA’s interpretation in spelling out his remedy. See infra pp. 12-14.
7
the changes in the Voice Mail Clerk job in response to
[the CWA’s] December 2001 grievance, and had the
matter been processed and ultimately referred to a
“neutral third party” as required by Article 16B.1(e) and
(f), a decision by the neutral third party would have been
rendered on or about May 9, 2002 which is 150 days
after December 9, 2001.[5] Thus, in the absence of the
contractual violation by [Verizon], this neutral third
party award would have been effective on December 9,
2001, fully within the boundaries of retroactivity
prescribed by the [CBA]. It would shock the
sensibilities of any reasonable person if [Verizon] were
allowed to benefit from its own bre[a]ch of the [CBA],
as found by Arbitrator Mackenzie, particularly since it
violated the very Article of the [CBA] that it now seeks
to use to limit the contractually agreed-upon remedy in
this matter.
Id. at 55-56.
On August 13, 2007, Verizon filed suit in district court under
section 301(a) of the Labor-Management Relations Act of 1947
(LMRA), 29 U.S.C. § 185(a), seeking partial vacatur of the
award to the extent the retroactive pay award exceeded 150
5
Although the arbitrator did not specify how he settled on the 150-
day time period between the CWA’s December 9, 2001 grievance and
the hypothetical May 9, 2002 award, it appears that he relied on the
timetable set out in the CBA. Under the CBA, the CWA has 60 days
from Verizon’s initial notice of the creation, restructuring or
redefinition of a job title or classification in which to negotiate and
reach agreement. CBA at 25. If no agreement is reached, the CWA
has an additional 30 days to demand arbitration. Id. The arbitrator
has 60 days from the date the matter is referred for resolution to issue
his award. Id.; see supra note 3. Added together, 150 days from the
date of the CWA’s grievance is May 9, 2002.
8
days.6 The CWA counterclaimed seeking enforcement. On
August 5, 2008, the district court granted summary judgment to
Verizon, holding that “Arbitrator Gerhart exceeded his arbitral
authority under the parties’ agreement” in that “he chose to
disregard the unambiguous limitations of Article 16B.1(f)—a
l i mi t a t i o n t h a t h e c h a r a c t e r i z e d a s a me r e
‘admonition’—because he concluded that it would be unfair to
observe that limitation in this case.” Verizon Washington, D.C.
Inc., 569 F. Supp. 2d at 127. Indeed, highlighting the
arbitrator’s “shock the sensibilities” language, the court
concluded that the arbitrator’s retroactivity determination “was
based on ‘his own brand of industrial justice.’” Id. at 128
(quoting United Steelworkers of Am. v. Enter. Wheel & Car
Corp., 363 U.S. 593, 597 (1960)). The CWA then filed a timely
notice of appeal.
II.
We have “final order” jurisdiction of this appeal under 28
U.S.C. § 1291 (“courts of appeals . . . shall have jurisdiction of
appeals from all final decisions of the district courts of the
United States”). Despite remanding the matter to an “arbitrator
of the parties’ choosing,” the district court order is a final,
appealable order given that the remand—limited to modifying
the retroactive effect of the award “in a manner consistent with
. . . [the court’s] Opinion,” that is, retroactive to 150 days before
the date of the arbitrator’s award—is ministerial in nature. See
Verizon Washington, D.C. Inc., 569 F. Supp. 2d at 129; Pueblo
of Sandia v. Babbitt, 231 F.3d 878, 881 (D.C. Cir. 2000)
6
Section 301(a) of the LMRA provides that “[s]uits for violation
of contracts between an employer and a labor organization
representing employees . . . may be brought in any district court of the
United States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the
parties.”
9
(“[R]emand orders may be considered final where a court
remands for solely ‘ministerial’ proceedings. . . .”); cf. Jays
Foods, L.L.C. v. Chem. & Allied Prod. Workers Union, Local
20, 208 F.3d 610, 612 (7th Cir. 2000) (“‘Provided that the
matter left for determination is not merely ministerial, . . . an
order that does not determine the entire substantive relief to
which the plaintiff is entitled is not a final decision . . . .’”)
(quoting Chrysler Motors Corp. v. Int’l Union, Allied Indus.
Workers of Am., 909 F.2d 248, 249 (7th Cir. 1990)) (emphasis
added).7 Our review of the district court’s grant of summary
judgment is de novo. USPS v. Am. Postal Workers Union, 553
F.3d 686, 692 (D.C. Cir. 2009).
The CWA contends that under United States Supreme Court
precedent as well as our own, the district court erred in
concluding that the arbitrator’s award did not “‘draw[] its
essence’ from the terms of the collective bargaining agreement.”
Howard Univ. v. Metro. Campus Police Officer’s Union, 512
F.3d 716, 720 (D.C. Cir. 2008) (quoting United Steelworkers of
Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960))
(alteration in Howard Univ.). The arbitrator, the CWA
continues, plainly satisfied this standard when he determined
that the award should apply retroactively to December 9,
2001—the date the CWA grievance was filed—because the
arbitrator adopted the CWA’s interpretation of the 150-day
limit. Br. of Appellant at 19-23. Noting that but for Verizon’s
breach of the CBA’s notice/negotiations requirements, the Voice
Mail Clerks’ wage rate would have been determined 150 days
7
Relying on Jay’s Foods, supra, the CWA asserts that our subject
matter jurisdiction comes from the Federal Arbitration Act, 9 U.S.C.
§ 16(a)(1)(E), which provides that “[a]n appeal may be taken from . . .
an order . . . modifying, correcting, or vacating an [arbitral] award.”
Br. of Appellant at 1-2. Verizon’s suit was brought under section 301
of the LMRA, however, and, accordingly, we do not reach the
applicability vel non of the FAA.
10
after the December 9, 2001 grievance was filed, the arbitrator
agreed with the CWA that Verizon should not benefit from its
breach. Id. at 20-21. According to the CWA, the
notification/negotiations requirements set forth in Article 16B
of the CBA were conditions precedent—with which both parties
were obligated to comply—to the Voice Mail Clerks’
assumption of additional duties, making any back pay remedy
retroactive to the date they assumed the additional duties.8
Having prevented the CWA from pursuing the grievance process
in a timely manner because of its failure to notify/negotiate,
Verizon should not reap the benefit of interpreting the 150-day
retroactivity limit literally to reach back only to December 31,
2006 (150 days before the date of the arbitrator’s award). Thus,
the CWA submits, the district court erred by “substituting its
interpretation of the parties’ agreement for the Arbitrator’s.” Id.
at 27.
We “may vacate a labor arbitration award only if it does not
‘draw[] its essence’ from the terms of the collective bargaining
agreement.” Howard Univ., 512 F.3d at 720 (quoting Enter.
Wheel & Car Corp., 363 U.S. at 597). We therefore “‘play only
a limited role when asked to review the decision of an
arbitrator.’” Teamsters Local Union No. 61 v. UPS, Inc., 272
F.3d 600, 604 (D.C. Cir. 2001) (quoting United Paperworkers
Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987)). Indeed,
“‘[w]hile courts . . . may review the substance of an arbitration
award, only the narrowest circumstances will justify setting the
award aside. An arbitrator cannot, for instance . . . ignore the
contract and dispense his own brand of industrial justice. But if
8
See also section 1(d) of Article 16B, which provides “[i]f
agreement is reached between the parties within the sixty (60) days
following the Union’s receipt of notice from [Verizon] concerning the
initial wage rates and schedules, the agreed upon wage rates and
schedules shall be retroactive to the date the change or new job was
implemented.” CBA at 25.
11
an arbitrator was arguably construing or applying the contract,
a court must defer to the arbitrator’s judgment.’” Howard Univ.,
512 F.3d at 720 (quoting Madison Hotel v. Hotel & Rest.
Employees, Local 25, 144 F.3d 855, 858-59 (D.C. Cir. 1998) (en
banc) (citations and internal quotation marks omitted and
emphasis added)). Moreover, an arbitrator need not be
“‘confined to the express provisions of the contract’” when
issuing his award but may also consider “the structure of the
contract as a whole.” Madison Hotel, 144 F.3d at 859 (quoting
United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 581 (1960)). As the Supreme Court declared in
Misco, Inc.,
To resolve disputes about the application of a collective-
bargaining agreement, an arbitrator must find facts and
a court may not reject those findings simply because it
disagrees with them. The same is true of the arbitrator’s
interpretation of the contract. The arbitrator may not
ignore the plain language of the contract; but the parties
having authorized the arbitrator to give meaning to the
language of the agreement, a court should not reject an
award on the ground that the arbitrator misread the
contract. . . . [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.
484 U.S. at 38.9
9
Cf. Grand Rapids Die Casting Corp. v. Local Union No. 159,
United Auto., Aerospace & Agric. Implement Workers of Am., UAW,
684 F.2d 413, 415 (6th Cir. 1982) (Sixth Circuit held arbitrator
exceeded his authority by ignoring relevant contractual provisions
because he found them so “offensive” as to “shock[] [his]
conscience.”); see also Anheuser-Busch, Inc. v. Int’l Bhd. of
12
Read in its entirety, the arbitrator’s opinion and award
manifests that he accepted the CWA’s interpretation of Article
16B.1(f) in concluding that December 9, 2001, the date the
CWA filed its grievance, was the “effective date of the creation
of the Senior Voice Mail job title.” Gerhart Award at 55; see
also Br. of Appellant at 20-21. In fact, the CWA’s interpretation
drew its essence from the CBA. But regardless whether it did,
the arbitrator’s decision did. While the arbitrator recognized his
duty to “interpret the language of Article 16B.1(f) which states
that ‘in no event shall the retroactive effect exceed 150 days,’”
he then had to determine whether “as [Verizon] contends, . . .
the new wage rate for the Voice Mail Clerks must be effective
no more than 150 days prior to the date of the instant arbitrator’s
award, or, pursuant to [the CWA’s] interpretation, . . . the
revised wage rate must have effect 150 days prior to [sic] the
Union’s initial grievance, i.e., December 9, 2001.” Gerhart
Award at 38-39. In setting the December 9, 2001 date, then, the
arbitrator interpreted the collective bargaining agreement as the
CWA did—namely, that the 150-day retroactivity provision
must be read in view of Verizon’s failure to give notice under
Article 16B.1(a) of the CBA. Gerhart Award at 17-18. So read,
the 150-day retroactivity provision correlates to the period the
arbitration process is to take once proper notice is given.10
Furthermore, interpreting Article 16B.1(f) in light of the
“structure of the contract as a whole,” Madison Hotel, 144 F. 3d
Teamsters, Local Union No. 744, 280 F.3d 1133, 1138 (7th Cir. 2002)
(“arbitrator cannot shield himself from judicial correction by merely
‘making noises of contract interpretation’” (quoting Ethyl Corp. v.
United Steelworkers of Am., 768 F.2d 180, 187 (7th Cir. 1985))
(emphasis omitted).
10
See supra note 5, showing the 150-day calculation between the
time of notice under Article 16B.1(a) and the issuance of an arbitration
award under Article 16B.1(f).
13
at 859—including the CBA’s notice provision—is within the
arbitrator’s authority, see id. Therefore we cannot say that the
arbitrator was not “arguably construing or applying the contract
and acting within the scope of his authority.” Misco, 484 U.S.
at 38.
Finally, the arbitrator included a hypothetical calculation that
“[had Verizon] not violated the Agreement as found by
Arbitrator Mackenzie, and had [Verizon] properly notified [the
CWA] of the changes in the Voice Mail Clerk job in response to
the [] December 2001 grievance, and had the matter been
processed and ultimately referred to a ‘neutral third party’ as
required by Article 16B.1(e) and (f), a decision by the neutral
third party would have been rendered on or about May 9, 2002
which is 150 days after December 9, 2001.” Gerhart Award at
55. In fact, the grievance process took from late 2001 until May
30, 2007 and the second arbitrator alone took over eight months
to issue his award notwithstanding the CBA’s requirement that
any arbitration award issue “within sixty . . . days of the date
that the matter is referred for resolution.” CBA at 25. Even
were we to conclude that his calculation was a “serious error,”
Misco, 484 U.S. at 38, our conclusion would not allow us to
vacate the reward. Indeed, “[t]he ‘parties having authorized the
arbitrator to give meaning to the language of the agreement,’
courts cannot ‘reject [the] award on the ground that the arbitrator
misread the contract.’” Madison Hotel, 144 F.3d at 859
(quoting Misco, 484 U.S. at 38). The arbitrator constructed a
time line consistent with Article 16B.1(f) of the CBA.
Accordingly, we uphold the award and reverse the district
court’s grant of summary judgment to Verizon.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
I write separately to state that for me reversal is tied to the
fact that the arbitrator adopted the CWA’s interpretation of
Article 16B.1(f), which interpretation is itself grounded in
Article 16B of the collective bargaining agreement.
Although—following the Supreme Court’s lead—we apply a
largely “hands off” standard of review to an arbitral award, that
does not mean anything goes, as even the CWA counsel
recognized:
Q: . . . . What if he had not felt confined by the 150
days—the Union had taken a different position or said
take it all the way back to the first day we got these
additional duties. Would that be enough to say he had
exceeded his authority?
Coslow: If he imposed a remedy that didn’t have
reference to the 150 days and its relationship to notice,
I think the Company’s argument would be much
stronger. But he anchored it in the notice requirement,
in the 150 days, in the Company’s breach. Those are all
appropriate considerations in interpretation.
Q: . . . Let me ask you one [other thing]. Have you
given us an example [] in this case [of] what would have
exceeded his authority?
Coslow: Well I suppose . . . I think you’ve presented one
and that is suppose he said, well I am going to,
arbitrarily, because I think it’s fair . . . I’m just [going to]
grant these employees this amount of money just
[be]cause I think they should have it. That, I think we’d
all say oh that’s over the top. But he didn’t do that . . . .
Oral Argument Recording, Verizon Washington, D.C. Inc. v.
Commc’ns Workers of Am., No. 08-7092, at 49:49-51:08 (argued
Apr. 21, 2009).