Howard University v. Metropolitan Campus Police Officer's Union

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2007 Decided January 18, 2008

No. 07-7055

HOWARD UNIVERSITY,
APPELLANT

v.

METROPOLITAN CAMPUS POLICE OFFICER’S UNION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 06cv00270)

Keith J. Harrison argued the cause for appellant. With him
on the briefs were Trina L. Fairley and Daniel M. Creekman.

William G. Jepsen, Jr. argued the cause and filed the brief
for appellee.

Before: GINSBURG, Chief Judge, and SENTELLE and
GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Howard University appeals from
the judgment of the district court affirming an arbitration award
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in favor of the union that represents the campus police. Howard
claims the arbitrator did not have jurisdiction to resolve the
dispute and, by excluding certain evidence relevant to the
merits, made an error so egregious as to constitute
“misconduct.” We affirm the judgment of the district court.

I. Background

The Metropolitan Campus Police Officer’s Union is the
exclusive representative of “officers, sergeants, and other
security personnel” employed by the Howard University
Campus Police Department. In December 2003, H. Patrick
Swygert and Carla McCormick, respectively the presidents of
the University and of the Union, signed a collective bargaining
agreement (CBA), Appendix C of which was styled “Wage
Compensation Package” and contained a list of planned salary
increases for covered employees. The CBA included this
arbitration clause: “[A]n allegation that there has been a
violation, misapplication, or misinterpretation of the terms of
this Agreement shall [be subject to arbitration].”

In May 2004, the Union filed a grievance claiming Howard
had not increased salaries in accordance with Appendix C.
Howard, which did not object to resolving the grievance through
arbitration, argued before the arbitrator that inclusion of
Appendix C in the contract was a mutual mistake. According to
Howard, the parties had not reached an agreement on the wage
compensation package when they signed the contract; they had
intended to table negotiations until after the Christmas holiday,
and unintentionally included Appendix C in the executed
agreement. The arbitrator framed the dispute as follows:
“Whether or not the Parties had a meeting of the minds on
Appendix C, the Wage Compensation package.”

The arbitrator conducted an evidentiary hearing in which
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she heard testimony from, among others, Howard’s chief
negotiator, Leroy Jenkins, and the Union president, Carla
McCormick. President Swygert, who had signed the CBA on
Howard’s behalf, did not testify. In order to show the Union had
not intended to include Appendix C in the agreement, Howard
proffered the testimony of Kimberly Kline, the Union’s chief
negotiator. The Union objected that Kline’s testimony violated
its attorney-client privilege and the arbitrator excluded it. In a
declaration filed in the district court, Kline said she would have
testified as follows:

During open negotiations, the parties agreed to continue
negotiating over the Wage Compensation Package after the
Agreement was signed. Specifically, the parties agreed to
continue negotiating certain pay increases that the union
members would receive on the basis of seniority over the
term of CBA.
...
Following execution of the Agreement, the parties did, in
fact, continue to negotiate over the specified pay increases.
Attached hereto as Exhibit 1 is an email that I forwarded to
Leroy T. Jenkins, counsel for Howard University, dated
February 9, 2004, which was almost two months after the
Agreement was executed. The purpose of this email was to
continue negotiating the pay increases.

Howard also proffered, and the arbitrator received into evidence,
the February 9 email mentioned in the declaration. It reads:

Leroy – Could you fax me the Performance Appraisal that
is being used for the guards. I assume the drug testing
facilities appendix that was being used in the last contract
is still okay. Also, do you have comments/suggestions
regarding the salary bands that were submitted?
 4

The arbitrator sustained the Union’s grievance. Finding the
February 9 email ambiguous and noting that President Swygert
did not testify for Howard, she concluded there was no “clear
and concrete evidence” to support the University’s contention
that Appendix C was included in the CBA by mutual mistake.
She therefore held the University was required to abide by the
wage terms in the Appendix.

Howard moved for reconsideration, which the arbitrator
denied. The Union then moved to confirm the arbitration award
in the Superior Court of the District of Columbia, and Howard
removed the case to district court pursuant to Section 301(a) of
the Labor Management Relations Act, 29 U.S.C. § 185(a),
which provides that “[s]uits for violation of contracts between
an employer and a labor organization ... may be brought in any
district court of the United States having jurisdiction of the
parties.” Once in district court, Howard filed a motion to vacate
the award, contending for the first time that the arbitrator “did
not have substantive jurisdiction under the CBA to determine
whether Howard University and the Union formed [a] ‘meeting
of the minds’ ....” Howard also argued the arbitrator had
impermissibly excluded the testimony of Kimberly Kline.

The district court affirmed the award. Howard Univ. v.
Metro. Campus Police Officer’s Union, No. 06-0270, ___ F.
Supp. 2d ___, 2007 WL 842959 (March 19, 2007). The court
agreed with Howard that whether there was a “meeting of the
minds” on Appendix C did not fall within the scope of the
arbitration clause in the CBA, but held Howard had forfeited
that point because it did not make the argument during the
arbitration. Id. at *3-6. The district court then held that,
assuming the arbitrator had erred in excluding Kline’s
testimony, the error did not constitute gross misconduct or
deprive Howard of a fundamentally fair hearing and therefore
did not provide a reason to vacate the award. Id. at *7-10.
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Howard appealed to this court.

II. Analysis

We review the district court’s decision de novo. Teamsters
Local Union No. 61 v. UPS, Inc., 272 F.3d 600, 603 (D.C. Cir.
2001). Under long-standing precedent, we may vacate a labor
arbitration award only if it does not “draw[] its essence” from
the terms of the collective bargaining agreement. United
Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593,
597 (1960). This leaves us very little scope for review:

While 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 an arbitrator was arguably construing or
applying the contract, a court must defer to the arbitrator’s
judgment.

Madison Hotel v. Hotel & Restaurant Employees, Local 25, 144
F.3d 855, 858-59 (D.C. Cir. 1998) (en banc) (citations and
internal quotation marks omitted).

That the arbitrator may have made a “mistake of law” does
not affect the standard of review: The parties “have agreed to be
bound by the arbitrator’s interpretation without regard to
whether a judge would reach the same result ....” Am. Postal
Workers Union v. USPS (APWU), 789 F.2d 1, 6-7 (D.C. Cir.
1986); see also Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465,
1475 (D.C. Cir. 1997) (“The deference due to arbitrators in the
collective bargaining context may be justified even when
arbitrators rely on ‘external’ or ‘public’ law in interpreting a
collective bargaining agreement”).
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A. Arbitrability

Howard contends the arbitrator lacked jurisdiction to hear
the grievance, but it did not raise this objection until it moved in
the district court to vacate the award. As a result, the Union
argues, the objection was forfeit.

We agree with the Union, as does every other circuit to have
considered the issue: Absent excusable ignorance of a predicate
fact, a party that does not object to the arbitrator’s jurisdiction
during the arbitration may not later do so in court. See United
Indus. Workers v. Gov’t of the V.I., 987 F.2d 162, 167-68 (3d
Cir. 1993); United Food and Commercial Workers, Local 400
v. Marval Poultry Co., Inc., 876 F.2d 346, 353 (4th Cir. 1989);
Jones Dairy Farm v. Local No. P-1236, United Food and
Commercial Workers Int’l Union, 760 F.2d 173, 175-76 (7th
Cir. 1985); George Day Constr. Co. v. United Bhd. of
Carpenters & Joiners of Am., Local 354, 722 F.2d 1471,
1475-76 (9th Cir. 1984); 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);
cf. Madison Hotel, 144 F.3d at 859-60 (Henderson, J.,
concurring in the judgment) We so hold for two reasons.

First, arbitration is a matter of consent; if a party submits to
arbitration without objecting to the arbitrator’s jurisdiction, then
it may fairly be said to have consented to the arbitration, and the
other party, having gone forward with the proceeding, may
fairly be said to have relied upon that consent. See United
Indus. Workers, 987 F.2d at 168 (“Once the parties have
mutually agreed to refer a matter to an arbitrator, they are bound
by his decision and may not later challenge his authority to
resolve the claim”).
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Second, requiring a party to object to the arbitrator’s
jurisdiction during the arbitration conserves resources. If a party
objects to the arbitrator’s jurisdiction and the arbitrator sustains
the objection, then the parties can go directly to court and, if the
court affirms, avoid an unnecessary arbitration proceeding.

Howard invokes International Brotherhood of Electrical
Workers, Local Union No. 545 v. Hope Electric Corp., 380 F.3d
1084 (8th Cir. 2004), but that case is not to the contrary. There,
the court did permit an employer to object to an arbitrator’s
jurisdiction after the arbitration had concluded, but the employer
had not participated in the arbitration, id. at 1101, and therefore
could not be said to have consented to the arbitration. In this
case Howard slept through its opportunity to object to the
arbitrator’s jurisdiction and may not avoid the consequence now
that it has awakened.*

B. Exclusion of evidence

Howard contends the award should be vacated because the
arbitrator excluded Kline’s testimony, and points us to the
Supreme Court’s instruction to “look[] to the [Federal
Arbitration Act] for guidance in labor arbitration cases.” United
Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 41 n.9
(1987). The FAA provides a federal court may set aside an

*
In any event, the Union’s allegation that Howard did not comply
with Appendix C plainly fell within the parties’ agreement to submit
to arbitration any “allegation that there has been a violation ... of the
terms of this Agreement.” The phrase “this Agreement” obviously
refers to the contract duly executed by the parties. That an arbitrator
may rule a provision is unenforceable because the parties made a
mutual mistake does not mean the provision is not part of the contract.
See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448
(2006) (holding contracts that are voidable or void ab initio are still
“contracts” within the meaning of the Federal Arbitration Act).
 8

arbitration award when “the arbitrators were guilty of
misconduct ... in refusing to hear evidence pertinent and material
to the controversy.” 9 U.S.C. § 10(a)(3). The scope of review
under this provision is narrow, however, because, as we have
said before:

[I]n making evidentiary determinations, an arbitrator need
not follow all the niceties observed by the federal courts.
The arbitrator need only grant the parties a fundamentally
fair hearing.... [A] federal court may vacate an award only
if the panel’s refusal to hear pertinent and material evidence
prejudices the rights of the parties to the arbitration
proceedings.

Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d
813, 816, 818 (D.C. Cir. 2007) (citations, internal quotation
marks, and alteration omitted).

Howard argues the arbitrator erred in excluding Kline’s
testimony based upon the attorney-client privilege because her
testimony contained no privileged statements; it referred only to
communications made in open negotiations with Howard.
Moreover, Howard submits, her testimony spoke directly to the
central issue at the hearing, that is, whether the parties had made
a mutual mistake in including Appendix C in the CBA. It
therefore contends this error was so prejudicial that it amounted
to the type of “misconduct ... in refusing to hear evidence
pertinent and material to the controversy,” 9 U.S.C. § 10(a)(3),
that justifies vacating an arbitration award.

There was no misconduct in the exclusion of Kline’s
testimony. Although Howard is correct that testimony by an
attorney describing statements made in open negotiations would
not be subject to the attorney-client privilege in a federal court,
see In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989), the
 9

arbitrator was not bound by the particulars of federal law
governing the attorney-client privilege. See CBA § 30.3.4.2
(“[T]he conduct of the arbitration hearing shall be in accordance
with the rules of the American Arbitration Association”); Labor
Arbitration Rules of the American Arbitration Association, Rule
28 (“The arbitrator shall be the judge of the relevance and
materiality of the evidence offered and conformity to legal rules
of evidence shall not be necessary”); see also APWU, 789 F.2d
at 6 (“When construction of the contract implicitly or directly
requires an application of ... statutory or decisional law, the
parties have necessarily bargained for the arbitrator’s
interpretation of the law and are bound by it”). Accordingly, the
question is not whether the arbitrator correctly applied federal
law; the question is whether her decision to exclude the evidence
out of a concern for a client’s asserted interest in confidentiality
amounted to “misconduct.” Plainly it did not.

According to the declaration filed in the district court,
Kline, speaking for the Union, made the statements at issue to
Leroy Jenkins, Howard’s chief negotiator, during the
negotiations. At the arbitration hearing, Jenkins testified on
Howard’s behalf regarding these statements. Although
Jenkins’s testimony is not in the district court record, he could
only have testified to the effect that the parties made a mutual
mistake - which means Kline’s testimony would have been
duplicative. The only value apparently to be added by Kline’s
testimony was that, as the attorney and chief negotiator for the
Union, she could most credibly speak to the Union’s intentions.
Her credibility arose, however, from her direct knowledge of the
Union’s intentions during negotiations, and that knowledge
derived at least in part from privileged communications and in
whole from her representation of the Union. Therefore, the
arbitrator’s decision to bar Kline’s testimony out of a concern
for a client’s interest in confidentiality, even if her testimony
 10

nominally contained only unprivileged statements, was certainly
not misconduct.

Moreover, “a federal court may vacate an award only if the
[arbitrator]’s refusal to hear pertinent and material evidence
prejudices the rights of the parties to the arbitration
proceedings.” Lessin, 481 F.3d at 818 (internal quotation marks
omitted). We see little if any prejudice to Howard from the
exclusion of Kline’s testimony. First, as noted, Jenkins could
only have testified on Howard’s behalf as to what was said
during the negotiations, which was the sole topic of Kline’s
testimony. Second, the arbitrator based her decision in part
upon the failure of Swygert, who signed the CBA for Howard,
to testify as to the University’s intentions; Kline’s testimony
would have done nothing to cure that defect in Howard’s case.

But wait! Howard objects that Swygert had no knowledge
of Howard’s intentions and was merely “performing the
ministerial act of signing the Agreement presented to him.”
Perhaps so -- Howard did not make that point when it moved for
reconsideration, nor does it claim in its brief to have made the
point during the hearing -- but we cannot, consistent with the
applicable standard of review, fault the arbitrator for drawing a
negative inference from Swygert’s failure to testify. Cf. Hoxie
v. DEA, 419 F.3d 477, 483 (6th Cir. 2005) (“[A] negative
inference can be drawn from a failure to testify in civil
proceedings”); EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90
(Tex. 1996) (“We presume a party ... who has the opportunity to
read an arbitration agreement and signs it, knows its contents”).
Nor does drawing such an inference approach in gravity the type
of error that justifies vacating an arbitration award for
misconduct.

Howard relies heavily upon three cases from other circuits,
Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d Cir. 1997);
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Gulf Coast Industrial Workers Union v. Exxon Co., 70 F.3d 847
(5th Cir. 1995); and Hoteles Condado Beach v. Union de
Tronquistas Local 901, 763 F.2d 34 (1st Cir. 1985), in which the
courts vacated arbitration awards on the ground of misconduct
because the arbitrator failed to consider certain evidence. In
each case, however, the court found the excluded evidence was
critical to the proponent’s case. In this case, as we have seen,
the arbitrator acted reasonably in excluding the evidence based
upon a concern for client confidentiality, and the exclusion of
the evidence, far from being a serious blow to Howard’s case,
caused it little if any prejudice. In these circumstances, we have
no reason to vacate the arbitration award for misconduct.

III. Conclusion

For the reasons set out above, the judgment of the district
court is
Affirmed.