Akers National Roll Co. v. United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 12-1727
_____________

AKERS NATIONAL ROLL COMPANY

v.

UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AND ITS LOCAL UNION
1138-4 OFFICE AND TECHNICAL,

Appellant
__________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-10-cv-01079)
District Judge: Hon. David S. Cercone
__________

Argued February 13, 2013

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 Before: HARDIMAN and ALDISERT, Circuit Judges, and
STARK, District Judge.

(Filed: April 4, 2013)

Daniel M. Kovalik
Mariana L. Padias (Argued)
United Steelworkers of America
Room 807
Five Gateway Center
Pittsburgh, PA 15222
Counsel for Appellant

John B. Bechtol
Kenneth S. Kornacki (Argued)
Metz Lewis Brodman Must O‘Keefe, LLC
535 Smithfield Street
Suite 800
Pittsburgh, PA 15222
Counsel for Appellee
__________

OPINION OF THE COURT
__________

ALDISERT, Circuit Judge.

The Union representing certain employees at Akers
National Roll Company (the ―Company‖) appeals from a


Honorable Leonard P. Stark, Judge of the United States
District Court for the District of Delaware, sitting by
designation.

2
judgment entered on March 13, 2012 by the United States
District Court for the Western District of Pennsylvania. The
District Court vacated an award issued by Arbitrator Richard
D. Sambuco (the ―Arbitrator‖), granted the Company‘s
motion for summary judgment, and denied the Union‘s
motion for summary judgment.

In 2009, the Union submitted three grievances on
behalf of Company employee and Union member Nelson
Lubik, alleging that the Company violated a ―past practice‖
by failing to schedule Lubik, a maintenance clerk, for
Saturday overtime when the maintenance department was
scheduled to work. After the Arbitrator sustained the three
grievances and ordered the Company to pay Lubik back
wages for the missed overtime, the Company sued to vacate
the Arbitrator‘s award. The District Court vacated the award
because it concluded that the award did not ―draw its
essence‖ from the Collective Bargaining Agreement (the
―CBA‖ or ―Agreement‖); it reached this conclusion after
determining that the plain language of the CBA
―unambiguously‖ gave the Company the exclusive right to
schedule its workforce. Because we disagree with the District
Court‘s reasoning and its conclusion, we will reverse the
District Court‘s judgment and will order enforcement of the
Arbitrator‘s award.

I.

A.

The Company runs a manufacturing plant in
Avonmore, Pennsylvania, and the Union is the exclusive
collective-bargaining representative for clerical and technical

3
employees at the plant. From September 1, 2008 through
February 29, 2012, the Company and the Union were parties
to a CBA. The CBA included a multi-step grievance
resolution procedure to be used when the Union and the
Company disagreed over ―interpretation or application of, or
compliance with the provisions‖ of the CBA. App. 31. Under
the CBA, unresolved grievances were submitted to
arbitration.

In February and March of 2009, the Union submitted
three grievances on behalf of Lubik, alleging that the
Company violated the CBA by directing Lubik not to work
Saturday shifts on February 14, February 28, and March 7,
when employees of the maintenance department were
scheduled to work. In the first grievance, the Union stated
that the nature of the grievance was ―Past Practice, the
maintenance clerk has always worked when the Maintenance
Department works whether full or partial crew.‖ Id. at 65.
Because Lubik would have been eligible for overtime pay if
he had worked on a Saturday alongside maintenance
department employees, the Union alleged that the Company
should be liable to pay Lubik at the overtime rate for the
hours he was not scheduled to work. Id.

Per the grievance resolution procedure, the Company
submitted answers to the Union‘s allegations. Regarding the
first grievance, the Company asserted that there was no
violation of the CBA because the ―Company has the right to
schedule under Section 3 . . . of the Labor Agreement,‖
because the CBA ―does not recognize the existence of ‗past
practice‘ in an[y] form,‖ and because ―[t]he notion of a ‗past
practice‘ cannot undo or supersede clear contract language[;]
Section 3 is very clear.‖ Id. at 66. The Company additionally

4
asserted that ―Section 2 – Scope of the Agreement [] states
that any agreements must be put in writing and signed by the
union designate and the company.‖ Id.

The Company submitted answers to the second and
third grievances as well, and its final answer stated that its
position had not changed since its answer to the first
grievance, ―cit[ing] Section 2, Section 3 and all other relevant
sections in support of its scheduling.‖ Id. at 70. The final
answer also referred to a ―Section 9 D (C) page 20‖ in
response to Lubik‘s grievance. The CBA does not contain a
Section 9(D)(C), though, and page 20 contains portions of
Section 8, ―Rates of Pay,‖ which does not appear to be
relevant to the instant dispute.

The Company and the Union ultimately submitted the
three grievances to arbitration per the CBA.

B.

Because provisions of the CBA command our attention
in deciding this case, we set forth the following relevant
sections thereof.

Section 3 of the CBA, entitled ―Management‖ and
referred to as the ―management rights clause,‖ reads as
follows:

1. The Company retains the exclusive
rights to manage the business and plant and to
direct the working forces. The Company, in the
exercise of its rights, shall observe the
provisions of this Agreement.

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 2. The rights to manage the business and
plant and to direct the working forces includes
the right to hire, suspend or discharge for proper
cause, or transfer, and the right to relieve
employees from duty because of lack of work or
for other legitimate reasons.

Id. at 29.

Section 9 of the CBA is entitled ―Hours of Work.‖
Two provisions of that Section are relevant to our analysis,
Sections 9(A)(1) and 9(B)(1), which read as follows:

A. Normal Hours of Work
1. The normal workweek shall be 40
hours per week, scheduled on five successive
days, from Monday through Friday, inclusive.

B. Scheduling
1. If an employee is requested to report
to work outside his regularly scheduled
workweek and whether or not work is available
he shall receive a minimum of 4 hours reporting
pay at the employee‘s applicable rate of pay.

Id. at 38.

Section 2 is entitled ―Scope of the Agreement.‖ Within
Section 2 is a paragraph referred to by the parties as a ―zipper
clause,‖ which reads as follows:

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 Agreements for the plant will only be
recognized if they are in writing and signed by
the designate of the International, and the
Negotiating Committee; provided, however,
that any such agreements may be terminated by
either party upon 30 days written notice to the
other party.

Id. at 28.

C.

On June 17, 2010, the Union and the Company
participated in a hearing before the Arbitrator, and they
―stipulated that the case being heard included three (3)
grievances, all involving the same issue.‖ Id. at 70. The
Union and the Company presented their contentions and
supporting evidence to the Arbitrator. The Arbitrator‘s award
contains a section that summarizes the positions of the parties
as presented at the arbitration hearing. Id. at 86-89. The thrust
of the Union‘s argument was that a past practice had been
established, and that a written, signed agreement was not
required for its establishment. Id. at 87. The Union presented
evidence in support of its argument, including the testimony
of Lubik as well as exhibits detailing the maintenance
department‘s work schedule from 2008-2010, along with
payroll records for Lubik. Id. at 72-83. From this evidence, it
was apparent that Lubik had worked weekend shifts along
with the maintenance department employees even on
weekends when he had not been formally scheduled to work,
and that he had been paid overtime for that work. This
practice concluded in 2009, leading to the Union‘s first
grievance.

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 The Company argued that there was no past practice in
its Agreement with the Union, because its zipper clause,
located at Section 2 of the CBA, precluded a finding of past
practice. It argued also that the CBA‘s Section 3 management
rights clause included the right to schedule, that any
modifying agreement would have to be in writing, and that
the past practice agreement had never been reduced to
writing.

In a decision that is now the subject of some dispute
between the parties, the Arbitrator determined that he had to
decide the following issue:

Did the Parties to the Agreement as alleged in
Grievance No. 2-2009 establish, by their actions
in the year 2008, an unwritten past practice and
did the Company violate this past practice? If
the answer is yes, what is the remedy?

Id. at 84.

D.

On July 17, 2010, the Arbitrator issued an award
sustaining Lubik‘s grievances and awarding him $5,477.08 in
back wages, as well as the amounts Lubik would have earned
in profit sharing in 2009 and 2010 had he worked on
weekends that the maintenance department was scheduled to
work. The Arbitrator cited several provisions of the CBA,
including Section 3‘s management rights clause. He did not
cite to or refer to Section 9, the ―Hours of Work‖ section. He
focused his analysis and discussion on whether a past practice

8
had in fact been established, and whether Section 2‘s zipper
clause prohibited a finding of past practice.

The Arbitrator concluded that the zipper clause failed
to prohibit a finding of past practice, because it ―does not
acknowledge that the written contract constitutes the parties‘
entire agreement, is not explicit with regard to a waiver of the
right to bargain about other conditions, nor is it a specific
affirmation that management rights are not limited by prior
practices.‖ Id. at 91. The Arbitrator determined also that the
language of the zipper clause was ambiguous, because its
language appeared to indicate that an agreement that would
satisfy the zipper clause would only require signature by the
Union and not by the Company. Id. at 100. In addition, he
described the characteristics of a binding past practice,
including such factors as clarity, consistency, longevity,
repetition, acceptability, underlying circumstances, and
mutuality. Id. at 94-95.

The Arbitrator concluded that a binding past practice
had been established when, in 2008, Lubik was permitted to
work on weekends when his name did not appear in the work
schedule. The Arbitrator noted that this practice occurred
under two different maintenance managers, prior to and after
adoption of the 2008-2012 CBA. Id. at 96. He noted also that
the mutuality requirement was met because ―the parties, by
virtue of their constant response to a recurring set of
circumstances, resulted in a mutually accepted way of doing
things that culminated into a past practice that carried over
into the present Collective Bargaining Agreement . . . .‖ Id. at
102. The Arbitrator concluded that the Union and the
Company did establish a past practice that the Company
violated when Lubik was not allowed to work along with the

9
maintenance department employees on weekends.
Accordingly, the Arbitrator sustained Lubik‘s grievances and
awarded him back wages and profit sharing.

E.

The Company then filed suit to vacate the Arbitrator‘s
award, alleging that the award ―ignores [the Company‘s]
exclusive and express right to direct the workforce and to
schedule overtime and therefore fails to draw its essence from
the [CBA].‖ Id. at 23. In addition to citing Section 3‘s
management rights clause, the Company cited to Section 9,
―Hours of Work.‖ Id. at 22. The Company alleged also that
the Arbitrator exceeded his jurisdiction under the CBA by
ignoring the CBA‘s clear provisions regarding the Company‘s
right to direct the workforce and schedule overtime, and that
the Arbitrator exceeded his authority by issuing an award that
impermissibly modifies the CBA. Id. at 24.

The Company and the Union filed cross-motions for
summary judgment. The District Court granted the
Company‘s motion, denied the Union‘s motion, and vacated
the award. The Union timely appealed.

II.

The District Court had jurisdiction under Section 301
of the Labor Management Relations Act, 29 U.S.C. § 185.
We have jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over the District Court‘s decision to vacate the
arbitration award. Pa. 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). ―[W]e apply the same standard the district

10
court should have applied in reviewing the arbitration award.‖
Exxon Shipping Co. v. Exxon Seamen‘s Union, 73 F.3d
1287, 1291 (3d Cir. 1996) (citation omitted). Our review is
quite narrow. If an ―arbitrator‘s award ‗draws its essence
from the collective bargaining agreement,‘ and is not merely
‗his own brand of industrial justice,‘ the award is legitimate.‖
United Paperworkers Int‘l Union, AFL-CIO v. Misco, Inc.,
484 U.S. 29, 36 (1987) (quoting United Steelworkers of Am.
v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960)). As
this Court stated 44 years ago:

[A] labor arbitrator‘s award does draw its
essence from the collective bargaining
agreement if the interpretation can in any
rational way be derived from the agreement,
viewed in the light of its language, its context,
and any other indicia of the parties‘ intention.

Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128
(3d Cir. 1969) (internal quotation marks omitted).

Indeed, a reviewing court may disturb an arbitrator‘s
award ―only where there is a manifest disregard of the
agreement, totally unsupported by principles of contract
construction and the law of the shop.‖ Id.; see also Brentwood
Med. Assocs. v. United Mine Workers of Am., 396 F.3d 237,
241 (3d Cir. 2005); Major League Umpires Ass‘n v. Am.
League of Prof‘l Baseball Clubs, 357 F.3d 272, 280 (3d Cir.
2004); Exxon Shipping Co. v. Exxon Seamen‘s Union, 993
F.2d 357, 360 (3d Cir. 1993); Virgin Islands Nursing Ass‘n‘s
Bargaining Unit v. Schneider, 668 F.2d 221, 223 (3d Cir.
1981). The Supreme Court has phrased the same idea in this
fashion: ―if an arbitrator is even arguably construing or

11
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.‖ Major
League Baseball Players Ass‘n v. Garvey, 532 U.S. 504, 509
(2001) (per curiam) (internal quotation marks and citation
omitted). The Garvey Court stated that arbitration awards
may be unenforceable ―only when the arbitrator strays from
interpretation and application of the agreement and
effectively ‗dispense[s] his own brand of industrial justice.‘‖
Id. (quoting Enter. Wheel, 363 U.S. at 597).

III.

The overarching question presented to us here is
whether the Arbitrator‘s award draws its essence from the
CBA. The Union insists that it does; the Company argues, in
total agreement with the District Court, that it does not.

The District Court concluded that the Arbitrator‘s
award did not draw its essence from the CBA, after
determining that the plain language of CBA Sections 3 and 9
gave the Company the exclusive right to direct and schedule
its workforce. In addition, the Court concluded that because
the Arbitrator‘s award did not draw its essence from the CBA,
the Arbitrator exceeded his authority when he relied on the
alleged past practice of the Company.

We regret we must disagree with both of the District
Court‘s conclusions. When parties knowingly and voluntarily
bargain for arbitration to resolve disputes, they receive the
benefits of fast results and reduced dispute-resolution
expenses. See Major League Umpires Ass‘n, 357 F.3d at 289.
These benefits, however, do not come without risk, and ―the

12
possibility of receiving inconsistent or incorrect rulings
without meaningful appellate review of the merits is one of
the risks such parties must accept when they choose
arbitration over litigation.‖ Id. In short, ―[i]t is the arbitrator‘s
construction which was bargained for; and so far as the
arbitrator‘s decision concerns construction of the contract, the
courts have no business overruling him because their
interpretation is different from his.‖ Enter. Wheel, 363 U.S. at
599.

The District Court here erred in the same manner as
the trial judge did in News America Publications, Inc. v.
Newark Typographical Union, Local 103, 918 F.2d 21 (3d
Cir. 1990). Speaking for the Court was Chief Judge
Higginbotham:

As Judge Aldisert has observed, federal labor
law elevates labor arbitrators to ―an exalted
status.‖ Ludwig Honold Mfg. Co. v. Fletcher,
405 F.2d 1123, 1126 (3d Cir. 1969). . . . A court
may not overrule an arbitrator simply because it
disagrees with the arbitrator‘s construction of
the contract, . . . or because it believes its
interpretation of the contract is better than that
of the arbitrator. See W.R. Grace & Co. v.
Local 759, International Union of the United
Rubber Workers, 461 U.S. 757, 764, 103 S.Ct.
2177, 2182, 76 L.Ed.2d 298 (1983).

News Am. Publ‘ns, 918 F.2d at 24.

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 Here, the Company accepted the risk of arbitration,
and now seeks to avoid its result; we will not permit it to do
so.

IV.

The Company contends that Sections 3 and 9 of the
CBA unambiguously vested it with the exclusive right to
schedule its employees. Citing Pennsylvania Power, it argues
that the Arbitrator manifestly disregarded the CBA and
ignored the plain language of Sections 3 and 9, such that the
award failed to draw its essence from the CBA. See Pa.
Power Co., 276 F.3d at 178. The District Court agreed with
the Company‘s contentions.

This raises a critical threshold issue for our
consideration: was the CBA so unambiguous as to the
Company‘s right to schedule its workforce such that the
Arbitrator‘s award, in which he inquired into past practice,
manifestly disregarded the CBA? This Court has stated that
―extrinsic evidence of ‗past practice‘ could be admitted, if at
all, only to resolve an ambiguity in the CBA.‖ Quick v.
N.L.R.B., 245 F.3d 231, 247-248 (3d Cir. 2001). In support of
this statement, Quick cited to U.A.W. Local 1697 v. Skinner
Engine Co., 188 F.3d 130 (3d Cir. 1999), which, quoting an
opinion of the U.S. Court of Appeals for the Seventh Circuit,
stated:

Although extrinsic evidence is admissible to
show that a written contract which looks clear is
actually ambiguous, perhaps because the parties
were using words in a special sense, . . . there
must be either contractual language on which to

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 hang the label of ambiguous or some yawning
void . . . that cries out for an implied term.
Extrinsic evidence should not be used to add
terms to a contract that is plausibly complete
without them.

Id. at 146 (quoting Bidlack v. Wheelabrator Corp., 993 F.2d
603, 608 (7th Cir. 1993) (en banc)).

This Court has also stated that ―[i]f the arbitrator‘s
award has deviated from the plain meaning of a labor contract
provision, it must find support in the contract itself or in prior
practices demonstrating relaxation of the literal language.‖
NF&M Corp. v. United Steelworkers of Am., 524 F.2d 756,
759 (3d Cir. 1975) (emphasis added) (citing H.K. Porter Co.
v. United Saw, File & Steel Prods. Workers of Am., 333 F.2d
596 (3d Cir. 1964)).

It cannot be disputed that the Arbitrator focused his
analysis on whether Section 2‘s zipper clause precluded a
finding of a past practice. As the District Court correctly
noted, the Arbitrator never explicitly stated that Sections 3
and 9 were ambiguous. In the view of the Company, the
Arbitrator‘s failure to explicitly state that there was ambiguity
in Sections 3 and 9, combined with the alleged clarity in the
CBA that the Company had exclusive scheduling rights,
precludes consideration of the effect of past practice.
Although the District Court agreed with the Company, we do
not.

The pertinent portion of Section 3 states that ―[t]he
Company retains the exclusive rights to manage the business
and plant and to direct the working forces.‖ App. 29. The

15
Arbitrator cited to this provision in a section of the award
entitled ―Contract Language,‖ but as the Company points out,
he did not explicitly address the import of Section 3 in his
analysis. Indeed, he only mentions Section 3 as it pertains to
Section 2‘s zipper clause, stating that the zipper clause‘s
language is not ―a specific affirmation that management
rights are not limited by prior practices.‖ Id. at 91.
Throughout the course of the dispute, from the submission of
the first grievance through the arbitration hearing, the
Company cited Section 3‘s management rights clause for the
proposition that it had the right to schedule its workforce. As
an example, the Company‘s first response to the Union‘s
grievance stated that ―[t]he Company has the right to schedule
under Section 3—MANAGEMENT page 4 of the Labor
Agreement.‖ Id. at 66-67. The ―Position of the Company‖
presented at the arbitration hearing states that ―[o]ur
management‘s rights clause includes the right to schedule.‖
Id. at 88.

From our reading of Section 3‘s management rights
clause, however, the right to schedule does not appear
anywhere in that clause. It appears, therefore, to be
understandable that the Arbitrator refused to accept the notion
that the contents of Section 3 unambiguously resolved the
dispute presented to him. It might have been preferable for
the Arbitrator to state explicitly that Section 3 was
ambiguous, therefore permitting him to address the past
practice issue. His failure to do so does not by itself, however,
require that the award be vacated. We note that ―[a]rbitrators
have no obligation to the court to give their reasons for an
award.‖ Enter. Wheel, 363 U.S. at 598.

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 Before the District Court, and again before us, the
Company relies heavily on the language of Section 9 of the
CBA, entitled ―Hours of Work.‖ Nowhere in the ―Position of
the Company‖ contained in the Arbitration award does it
appear that the Company cited to or relied upon the
provisions of Section 9. The Company did refer to Section 9
in one of its responses to the Union‘s grievances, stating:
―Section 9 D (C) page 20 does not mandate any monetary
penalty for a failure to give a four hour notice. That section
deals with a reporting allowance for a shift when the
employee was not notified and actually reports for work.‖
App. 70. The parties appear to agree that this reference by the
Company was actually to Section 9B(1), which states that
―[i]f an employee is requested to report to work outside his
regularly scheduled workweek and whether or not work is
available he shall receive a minimum of 4 hours reporting pay
at the employee‘s applicable rate of pay.‖ Id. at 38.

According to the Company, the critical language of
Section 9B(1) is ―[i]f an employee is requested to work
outside his regularly scheduled workweek.‖ Brief of
Appellee 15. Section 9A(1) defines a ―normal workweek‖ as
―40 hours per week, scheduled on five successive days, from
Monday through Friday, inclusive.‖ App. 38. From this the
Company contends that this language unambiguously bestows
upon it an exclusive right to schedule. Again, we disagree.

First, we note that the Company misquotes the CBA,
which actually states ―[i]f an employee is requested to report
to work outside his regularly scheduled workweek . . . .‖ Id.
(emphasis added). More importantly, this interpretation of
Section 9 was never put before the Arbitrator. Even if it had
been, the language is not so unambiguous as to compel a

17
finding that the Company had the exclusive right to schedule
employees for weekend work. Language discussing
compensation for employees who are asked to report—and
upon reporting find that their services are not needed that
day—simply is not the equivalent of a clear statement that the
Company has an exclusive right to schedule.

Even accepting the Company‘s argument that the
CBA‘s plain meaning gives it the exclusive right to schedule,
the Arbitrator would have been justified in deviating from
that plain meaning because prior to the CBA‘s existence,
Lubik was allowed to work whenever the maintenance
department worked. This constitutes a ―prior practice[]
demonstrating relaxation of the literal language.‖ See NF&M
Corp., 524 F.2d at 759.1 As we discuss below, the Arbitrator
determined that the CBA‘s zipper clause did not bar
establishment of a prior practice, notwithstanding the
Company‘s protestations.

We conclude, therefore, that the CBA was not so free
of ambiguity regarding the Company‘s exclusive right to

1
We note that this is in tension with this Court‘s
pronouncement in Quick that ―extrinsic evidence of ‗past
practice‘ could be admitted, if at all, only to resolve an
ambiguity in the CBA.‖ Quick, 245 F.3d at 247-248. The
Union contends that Quick and Skinner Engine are
distinguishable because they were not cases where this Court
was asked to review an arbitration award. Although we need
not decide it here, given that we disagree with the District
Court‘s conclusion that the CBA unambiguously gives the
Company exclusive scheduling rights, the Union persuasively
distinguishes those cases.

18
schedule its workforce such that the Arbitrator‘s inquiry into
past practice and introduction of extrinsic evidence were not
permissible. Our inquiry, however, does not end there. We
still must determine whether the award draws its essence from
the CBA.

V.

The Union maintains that a past practice both could be
and was established, notwithstanding the zipper clause in
Section 2 of the CBA. As discussed previously, the Company
contended throughout the dispute that the clarity of Section 3
precluded use of past practice to ―undo or supersede clear
contract language.‖ App. 67. The Company contended also
that Section 2‘s zipper clause required any agreements to be
put in writing and signed by the Union designate and the
Company. Id. We will defer to the Arbitrator‘s ultimate
conclusion that a past practice both could be and had been
established.

The Company and the District Court faulted the
Arbitrator for formulating the issue presented to him as
follows: ―Did the Parties to the Agreement as alleged in
Grievance No. 2-2009 establish, by their actions in the year
2008, an unwritten past practice and did the Company violate
this past practice? If the answer is yes, what is the remedy?‖
Id. at 84. We agree with the Company that the Union
exaggerates its position when it states that, ―as directed by the
Company, the Arbitrator focused on CBA Section 2, the
purported ‗zipper clause.‘‖ Brief of Appellant 22 (emphasis
added). Although the Company did indeed stipulate that the
case included three grievances all involving the same issue,
we believe that the Company was merely acknowledging that

19
all three grievances contained the same allegations regarding
the Company‘s failure to schedule Lubik for weekend work.
This acknowledgment is not the same as stipulating that the
Arbitrator was only to consider whether a past practice could
be established under the CBA, and more specifically under
Section 2.

Nevertheless, ―the deference that is accorded to an
arbitrator‘s interpretation of the collective bargaining
agreement should also be accorded to an arbitrator‘s
interpretation of the issue submitted.‖ Major League Umpires
Ass‘n, 357 F.3d at 272 (internal quotation marks and citations
omitted). The Arbitrator considered the contentions of the
parties, the evidence presented, and the history of the dispute
between the Union and the Company. He then determined
that he was required to decide whether the parties established
a past practice by their actions in 2008, and whether that past
practice was violated. From the presentation of the parties‘
respective positions at the arbitration hearing, it appears that
both the Union and the Company focused on whether a past
practice could exist under the CBA, and specifically on
whether Section 2‘s zipper clause precluded introduction of
past practice into the CBA. Tellingly, the Company submitted
only one non-joint exhibit during the arbitration hearing, a
handwritten document entitled ―Saturdays N. Lubik Did Not
Work.‖ App. 83. Accordingly, we defer to the Arbitrator‘s
determination that the issue presented was whether a past
practice had been established and violated.

In the award‘s ―Discussion on the Merits,‖ the
Arbitrator discussed, at some length, the process by which a
past practice can become established, and he found that a
binding past practice had in fact been established. He

20
addressed the Company‘s contention that its Section 2 zipper
clause precluded establishment of a past practice without a
written agreement. The Arbitrator considered the Company‘s
interpretation of the zipper clause, and stated:

This language does not acknowledge that the
written contract constitutes the parties‘ entire
agreement, is not explicit with regard to a
waiver of the right to bargain about other
conditions, nor is it a specific affirmation that
management rights are not limited by prior
practices.

Id. at 91.

Throughout the Arbitrator‘s discussion, he emphasized
that the past practice began before the adoption of the CBA
and continued thereafter, and it appears that he believed this
provided further support for the proposition that the
Company‘s zipper clause was not dispositive. Accordingly,
we defer also to the Arbitrator‘s conclusion that a binding
past practice had been established.

The sine qua non of judicial review of an arbitration
award is a heavy degree of deference to the arbitrator. And
here the role of both a District Court and a Court of Appeals
is far different than that of a District Court reviewing a
decision of a Bankruptcy Court or a Court of Appeals
reviewing a bench trial award. Arbitration is all about
―private court adjudication,‖ and the use of arbitration has
been rapidly increasing over the years and shows no signs of
slowing. Arbitration procedures themselves have a lengthy
history, with law merchant origins in medieval Europe and

21
elsewhere. At bottom, arbitration is a kind of settlement
technique in which a third party reviews the case and imposes
a decision that is legally binding on both parties. It is
designed to be faster and cheaper than resolving a matter in
the trial courts, and it should not be subject to a lengthy and
expensive judicial review.

A half century past, this Court made clear in Ludwig
Honold that an award draws its essence from the CBA if it
can be derived from the Agreement in any rational way, and
that a reviewing court may disturb only those awards
demonstrating a manifest disregard of the Agreement. 405
F.2d at 1128. In view of the previous discussion of
ambiguities in the CBA‘s language, and applying the
teachings of Ludwig Honold, we conclude here that the
Arbitrator‘s interpretation draws its essence from the CBA,
and that the Arbitrator did not manifestly disregard the CBA.
Accordingly, the District Court should not have disturbed the
award.

*****

The judgment of the District Court will be reversed
and an Order issued to enforce the Arbitrator‘s award.

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