Teamsters Local Union No. 61 v. United Parcel Service, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2001 Decided December 7, 2001

No. 00-7239

Teamsters Local Union No. 61, affiliated with the
International Brotherhood of Teamsters, AFL-CIO,
Appellant

v.

United Parcel Service, Inc.,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99cv00935)

Jonathan G. Axelrod argued the cause for the appellant.

Edward P. Lynch argued the cause for the appellee. Wil-
liam J. Kilberg and Lauren S. Goodman were on brief.
Eugene Scalia entered an appearance.

 Before: Henderson, Randolph and Rogers, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: Teamsters
Local Union No. 61 (Local 61) seeks reversal of the district
court's grant of summary judgment to United Parcel Service,
Inc. (UPS), affirming two rulings of the Atlantic Area Parcel
Grievance Committee (Committee), a joint management-labor
panel created to resolve UPS employee grievances. In re-
solving a discharge grievance brought by employee Mark
Thompson, the Committee decided on January 20, 1999 that
the case could proceed to the merits; on February 16, 1999 it
upheld Thompson's discharge. In district court, Local 61
argued that the two decisions were invalid because each was
made absent a quorum. Finding that the Committee's impar-
tial arbitrator had the authority to decide to proceed to the
merits and that the Committee could decide the merits in the
absence of the union Committee members, the district court
held that Local 61 did "not meet the substantial burden
required to vacate the arbitration decision" and it granted
UPS's motion for summary judgment. Joint Appendix (JA)
255. We agree and therefore affirm the district court's grant
of summary judgment.

I.

Local 61, an unincorporated labor organization, challenged
in district court the Committee's decision to affirm the dis-
charge of Mark Thompson, a UPS package pickup and deliv-
ery driver. Local 61 and UPS are bound by collective
bargaining agreements known as the National Master United
Parcel Service Agreement (NMA) and the Atlantic Area
Supplemental Agreement (Supplement). The agreements
mandate that if a grievance cannot be resolved on the job by
management, it must be submitted to the Committee for
arbitration. See generally Supplement, Article 49, section 2.
The Committee meets monthly for a three-day period. See
Supplement, Article 49, section 4(b). Each monthly Commit-
tee is to consist of an equal number of representatives from
management and the union--no fewer than two and no more

than three members each. See Supplement, Article 49, sec-
tion 2(e). The Supplement requires in a discharge or suspen-
sion case that an "impartial arbitrator" serve as the fifth or
seventh member and further provides that he "shall render a
bench decision on [sic] all deadlocked cases." Supplement,
Article 49, section 4(c).

The January 1999 Committee designated to consider the
Thompson grievance consisted of seven members--three
management members, three union members and the impar-
tial arbitrator, Joseph Sharnoff. Shortly after the January 19
hearing began, Local 61 questioned the Committee's authori-
ty to hear the case in view of an alleged agreement between
the parties that discharge cases involving productivity were
not to be resolved by arbitration. Raising a point of order,1
Local 61 argued that UPS was precluded from defending
Thompson's discharge on the ground that he had failed to
meet production standards. The Committee then considered
the issue in executive session. During the session, one man-
agement member moved to deny Local 61's point of order.
Before the motion was seconded, however, the three union
members left the room. They did not return that day.

The Committee reconvened on January 20, recommenced
its executive session and resumed discussions regarding the
productivity issue. Once again a management member
moved to deny the point of order. The motion was seconded
but, once again, the three union members left the room
before a vote could be taken. When the arbitrator's efforts to
get the three to return were unsuccessful, he ruled that their
absence amounted to three votes to uphold Local 61's point of
order and to dismiss the Thompson grievance on the basis
that it involved productivity. The three management mem-
bers then voted to deny the productivity point of order,
creating a 3-3 deadlock. The arbitrator broke the deadlock

__________
1 A point of order, in Committee parlance, appears to be the
arbitration equivalent of an objection in a trial court proceeding.
See, e.g., Br. of Appellant at 6 (describing Local 61's productivity
point of order); Br. of Appellee at 7 (same).

by voting to deny the point of order and to proceed to the
merits.

When the Committee reconvened on January 21 to hear the
merits, two of the three union Committee members refused to
participate in the hearing and remained instead in an adjoin-
ing room. Local 61 then raised a point of order that there
was no quorum. The arbitrator again attempted to get the
union members to participate and again he failed. Upon
returning to the hearing room, the arbitrator stated that "we
do not have, to my view, a properly constituted panel ...
[b]ecause there are two [u]nion members absent, for whatever
reason." JA 48. He recommended that "we proceed to put
the record on tape ... [a]nd at such point as everybody's
finished stating what their positions are we'll proceed, I
guess, with however [UPS] determines that we can proceed."
JA 48. UPS then raised a point of order asserting that the
union Committee members' refusal to proceed violated Article
7 of the NMA, which provides in part that "[t]he [u]nion
agrees it will not unreasonably delay the processing of [dis-
charge or suspension] cases." NMA Article 7. UPS threat-
ened to remove Thompson from the payroll but the remaining
union Committee member objected that doing so would vio-
late both the NMA and the Supplement. The Committee did
not rule on the Article 7 point of order before adjourning.

A different five-member Committee convened on February
16 with two management members, two union members and
the same arbitrator in attendance. When the Committee
called the Thompson case, one union member refused to
participate. Local 61 again raised a point of order that there
was no quorum, although four of the five Committee members
(two management members, one union member and the arbi-
trator) remained present. In executive session, the Commit-
tee denied Local 61's point of order. Local 61 then stated
that it would not participate any further or be bound by any
Committee decision, again insisting--in spite of the Commit-
tee's ruling to the contrary--that there was no quorum.
When UPS began presenting its case, the remaining union
Committee member left the hearing, echoing Local 61's objec-
tion that there was no quorum. After UPS's presentation,

"the Panel ruled in favor of the Company," JA 54, and upheld
Thompson's discharge, JA 120.

Local 61 sought in district court to vacate the Committee's
decisions, arguing that both the January 20 decision to pro-
ceed and the February 16 decision on the merits were invalid
because they were made without a quorum. On September 7,
2000 the district court granted UPS's motion for summary
judgment.

II.

Our review of a district court's decision on a summary
judgment motion is de novo. See Shields v. Eli Lilly & Co.,
895 F.2d 1463, 1466 (D.C. Cir. 1990) ("Since pretrial summary
judgment decisions are rendered exclusively on the basis of a
'paper' record, an appellate court is equally well-positioned as
a trial judge to assess the evidence at issue."). We will affirm
the district court's grant of summary judgment to UPS only if
UPS has demonstrated in view of all the facts--and the
reasonable inferences drawn therefrom in the light most
favorable to Local 61, the non-moving party--that "there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). Local 61 appeals the grant of summary
judgment to UPS on three grounds.

First, Local 61 argues that the district court had the
"broad authority" and even the duty to "scrutinize strictly"
the Committee's January 20 decision to proceed because that
decision was substantive, not procedural, and because it "seri-
ously undermined the integrity of the arbitral process." Br.
of Appellant at 17. We reject this contention.

It is well-settled that "the courts play only a limited role
when asked to review the decision of an arbitrator." United
Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S.
29, 36 (1987). Indeed, we "are not authorized to reconsider
the merits of an award even though the parties may allege
that the award rests on errors of fact or on misinterpretation
of the contract." Id.; see also United Steelworkers of Am. v.

Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960) ("The
federal policy of settling labor disputes by arbitration would
be undermined if courts had the final say on the merits of the
awards."). We have repeatedly recognized that "judicial re-
view of arbitral awards is extremely limited" and that we "do
not sit to hear claims of factual or legal error by an arbitrator
as [we would] in reviewing decisions of lower courts." Ka-
nuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178
(D.C. Cir. 1991) (quoting Misco, 484 U.S. at 38). The United
States Supreme Court recently reaffirmed these general prin-
ciples, holding that "if an arbitrator is even arguably constru-
ing or 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." Ma-
jor League Baseball Players Ass'n v. Garvey, 532 U.S. 504,
__, 121 S. Ct. 1724, 1728, 149 L. Ed. 2d 740 (2001) (per
curiam) (internal quotations omitted) (emphasis added). Ju-
dicial deference to an arbitrator is broader still if the arbitra-
tor's decision is a procedural one. See John Wiley & Sons,
Inc. v. Livingston, 376 U.S. 543, 557 (1964). In Wiley, the
Court made clear that procedural questions include such
issues as "whether grievance procedures or some part of
them apply to a particular dispute, whether such procedures
have been followed or excused, or whether the unexcused
failure to follow them avoids the duty to arbitrate." Id. at
557; see Denhardt v. Trailways, Inc., 767 F.2d 687, 690 (10th
Cir. 1985) (quoting Wiley, 376 U.S. at 557); see also McKes-
son Corp. v. Local 150 IBT, 969 F.2d 831, 834 (9th Cir. 1992)
(question of limitations on time in which arbitrator may
render decision is procedural); Beer, Soft Drink, Water,
Fruit Juice, Carbonic Gas, Liquor Sales Drivers et al., Local
Union No. 744 v. Metro. Distribs. Inc., 763 F.2d 300, 303 (7th
Cir. 1985) (issues of waiver and timeliness of filing are
procedural under Wiley).

As the district court observed, there is no dispute that a
quorum existed at the outset of the January 20 hearing
during which the Committee decided to proceed to the merits.
See JA 252; see also Oral Arg. Tr. at 4 (Local 61 stating that
"[a]t the beginning of the hearing, all three members of each

side were present and the neutral arbitrator was present").
Neither the collective bargaining agreements nor the Com-
mittee's Rules of Procedure (Committee Rules)2 clearly ad-
dress the question whether the union members' subsequent
walkout prevented a quorum. True, the Committee Rules
provide that the Committee "shall be composed of members
or alternates representing the [u]nion and members or alter-
nates representing the [e]mployer." Committee Rules, Arti-
cle II, section 2. And they provide that each Committee
"shall consist" of an equal number of management and union
members. Committee Rules, Article IV, section 2; see also
Supplement, Article 49, section 2(e). But these provisions
might simply require the presence of an equal number of
management and union members at the commencement of
any particular Committee hearing.

Whether the provisions require an equal number of man-
agement and union Committee members at the time of voting
and whether the union members' walkout prevented further
proceedings--that is, "whether [these] grievance procedures
or some part of them apply to [Thompson's discharge arbitra-
tion], whether such procedures have been followed or excused
[here], or whether the unexcused failure to follow them avoids
the [union's] duty to arbitrate," Wiley, 376 U.S. at 557--are
procedural questions. It is likely that one reason the parties
bargained for a neutral arbitrator in the first place was to
provide a vehicle for resolving on a case-by-case basis these
very questions--ones the collective bargaining agreements
left unclear but ones that still "grow out of the dispute and
bear on its final disposition." Id. at 556-57 ("Questions
concerning the procedural prerequisites to arbitration do not
arise in a vacuum; they develop in the context of an actual
dispute about the rights of the parties to the contract or those

__________
2 Pursuant to an agreement between "[t]he Local Unions party to
the Atlantic Area Supplement" and UPS, the Rules of Procedure
"implement the provisions set forth in the grievance procedure of
the Atlantic Area Supplement," although nothing contained in the
Rules "shall in any way be deemed to alter or amend the proce-
dures set forth in such Supplement." JA 108 (Committee Rules,
Article I).

covered by it."). Given the special deference we owe the
arbitrator on procedural matters, see id. at 557, we cannot say
that his January 20 decision to go forward in spite of the
union members' walkout was in error.

Moreover, even if the arbitrator's decision to proceed were
substantive,3 as Local 61 contends, the holding in Garvey
would still counsel deference. It is at least "arguabl[e]"
under the Garvey standard that because there was a quorum
at the beginning of the January 20 session, any quorum
requirement that existed was met. As the district court put
it:

If an arbitration [decision] ... draws its essence from
the collective bargaining agreement, the Court will up-
hold the [decision].... Article 7 of the National Master
Agreement states that "The [u]nion agrees it will not
unreasonably delay the processing of [discharge] cases."
... The arbitrator's decision to go forward after re-
peated and unexplained departures by the [u]nion [Com-
mittee] members is consistent with this provision of the
collective bargaining agreement.

JA 254 (citations omitted).

Like the district court, we conclude that the arbitrator was
"within the scope of his authority," Garvey, 532 U.S. at __,
121 S. Ct. at 1728, in first declaring and then breaking the
deadlock on January 20. Contrary to Local 61's contentions,
the arbitrator is "more suited than the courts to interpret
[the NMA] and to resolve contractual problems which occur
between labor and management." Teamsters Local 623 v.
UPS, Inc., 786 F. Supp. 509, 511 (E.D. Pa. 1992); see United
Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363

__________
3 Local 61 asserts that "substantive" questions include "whether
non-parties to the contract may be compelled to arbitrate a dispute"
and whether "fundamental procedural irregularities [have tainted]
the arbitration proceeding." Br. of Appellant at 19 (citations omit-
ted). It cites no authority, however, for its proposition that a
quorum vel non is a "substantive" issue. See id.

U.S. 574, 582 (1960) (arbitrator "is usually chosen because of
the parties' confidence in his knowledge of the common law of
the shop and their trust in his personal judgment to bring to
bear considerations which are not expressed in the contract
as criteria for judgment"). Consistent with this principle, the
district court recognized that "[t]he party seeking to vacate
an arbitration award," here Local 61, "faces a 'steep upward
grade.' " JA 251 (quoting Local 2094, American Fed'n of
State, County & Mun. Employees v. Howard Univ. Hosp.,
996 F. Supp. 61, 65 (D.D.C. 1998)).4

Local 61 is mistaken in its assertion that the union Commit-
tee members' conduct in absenting themselves constituted
misconduct that serves as a basis for vacating the Commit-
tee's decision to proceed. Local 61 did not challenge the
union Committee members' conduct at any time before this
appeal. Here, Local 61 alleges for the first time that the
union members' alleged misconduct in walking out should be
attributed to the Committee as a whole. Because this argu-
ment was not raised in the district court, it is not properly
before this court. See United States v. Wider, 951 F.2d 1283,
1287 (D.C. Cir. 1991) (adhering to "general rule ... that a
federal appellate court does not consider an issue not passed
upon below") (quoting Singleton v. Wulff, 428 U.S. 106, 120
(1976)).

More importantly, if we were to accept this argument, the
practical result would be perverse at best--whenever union
members believed a grievant's discharge was wrongful, they
could simply refuse to participate in the arbitration, claim the
Committee was "biased" and by default the grievant would
retain his job with pay. See NMA Article 7. This is not the
arbitration procedure for which UPS bargained. Article 7
prevents both sides from derailing the arbitration process.
Under that provision, UPS agreed to allow the discharged

__________
4 Moreover, Local 61 does not, and cannot, dispute the district
court's finding that the vote to proceed caused it no harm because
the arbitrator decided to count the union Committee members'
absence as three votes to uphold Local 61's point of order. See JA
253.

employee to remain on the job, without loss of pay, "unless
and until the discharge or suspension is sustained under the
grievance procedure" and, in return, the union agreed that it
"will not unreasonably delay the processing of [discharge]
cases." Id. We decline to deny UPS the benefit of its
bargain by holding that the union Committee members' tac-
tics provide a basis for vacating the Committee's January 20
decision to proceed.

Local 61's second ground of appeal is that the district court
committed reversible error in failing to scrutinize the Com-
mittee's January 20 decision to proceed under a narrow
"public policy" exception that denies enforcement of an arbi-
tration award if it "violates established law or seeks to compel
some unlawful action." Am. Postal Workers Union, AFL-
CIO v. United States Postal Serv., 789 F.2d 1, 8 (D.C. Cir.
1986) (citing W.R. Grace & Co. v. Local Union 759, Int'l
Union of United Rubber Workers, 461 U.S. 757, 766 (1983)).
The claim is without merit.

We have explained that the public policy exception to the
enforceability of an arbitration award "is extremely narrow[,]
... [and] applies only when the public policy emanates from
clear statutory or case law, not from general considerations
of supposed public interests." Id. (internal quotations omit-
ted) (emphasis in original). Local 61 cites no statutory
authority or case law supporting its proposition that a quo-
rum is required as a matter of public policy. It correctly
observes that "[n]ational labor policy concerning arbitration
awards flows from the statutory principle that '[f]inal adjust-
ment by a method agreed upon by the parties is ... the
desirable method for settlement of grievance disputes.' " Br.
of Appellant at 16 (quoting 29 U.S.C. s 173(d)). That princi-
ple, however, supports UPS's position, not Local 61's--the
parties accepted an arbitration method under which procedur-
al conflicts are to be resolved by an arbitrator, see Wiley, 376
U.S. at 557, and agreed that neither side would derail the
resolution of discharge cases, see NMA Article 7. According-
ly, we conclude that the district court properly deferred to
the Committee's January 20 decision to proceed to the merits
of Thompson's grievance.

 Local 61's third challenge goes to the Committee's Febru-
ary 16 merits decision to uphold Thompson's discharge. The
union asserts, simply, that a merits decision made in the
absence of a quorum is void per se. This claim can be
disposed of in short order.

Neither the NMA nor the Supplement nor any of the
Committee Rules uses the word "quorum." As we men-
tioned, the Supplement and Rules do state that each monthly
Committee is to consist of an equal number of management
and union members. See Supplement, Article 49, section 2(e);
Committee Rules, Article IV, section 2. Nevertheless, it is at
least "arguabl[e]" under Garvey deference that whatever
"quorum" requirement the Supplement and Rules may im-
pose was met when all five Committee members were present
at the commencement of the February 16 proceeding. More-
over, Article 7 of the NMA at least suggests that Committee
action in the absence of a quorum is appropriate if union
Committee members "unreasonably delay the processing" of
a discharge case by subsequently boycotting the proceeding.5

For the foregoing reasons, the district court's grant of
summary judgment to UPS is

Affirmed.

__________
5 The only support Local 61 can muster for its claim is Robert's
Rules of Order, which state that "[i]n the absence of a quorum, any
business transacted ... is null and void." Robert's Rules of Order,
Newly Revised 341 (9th ed. 1990). These, of course, are no support
at all. The parties' collective bargaining agreements (and the
arbitrator's interpretations thereof) determine Committee proce-
dure. Nowhere do the agreements or the Committee Rules (or the
arbitrator's interpretations thereof) suggest that Robert's Rules
apply. Therefore, like the district court, we are unpersuaded by
Local 61's "analogy between the proceedings before the [Commit-
tee] and proceedings before Congress." JA 255.