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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2008 Decided December 23, 2008
No. 07-5316
AMERICAN POSTAL WORKERS UNION, AFL-CIO,
APPELLANT
v.
UNITED STATES POSTAL SERVICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01404)
Melinda K. Holmes argued the cause for appellant. With
her on the briefs was Anton G. Hajjar.
Brian P. Hudak, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS, GARLAND and KAVANAUGH, Circuit
Judges.
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Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal concerns the
interpretation of an arbitration award. The arbitration arose
under a settlement agreement addressing the parties’ disputes
about whether their collective bargaining agreement (“CBA”)
required the assignment of the positions and the duties of
particular job classifications to the bargaining unit represented
by the American Postal Workers Union (“the Union”). In
response to the Union’s lawsuit to compel enforcement of an
arbitrator’s award regarding one such classification, the district
court granted summary judgment for the U.S. Postal Service,
ruling that the award addressed only the scope of the bargaining
unit — which workers the Union represents — and not work
assignments — which work the represented workers are entitled
to do. Upon de novo review, we conclude that the award
addressed both issues.
I.
In 1999, the Union and the U.S. Postal Service entered into
a settlement agreement to resolve a number of disputes arising
under their CBA about unit scope and work assignments.
Formal grievances as well as a petition to the National Labor
Relations Board (“the Board”) for unit clarification had been
filed. Under the settlement, the parties agreed to arbitrate six
grievances, each involving a different position in the executive
and administrative service, before a single arbitrator. This
appeal involves the Union’s August 1998 grievance regarding
the Address Management System (“AMS”) Specialist position.
On April 29, 2003, the arbitrator issued the following
award:
Having carefully considered all evidence submitted
3
by the parties concerning this matter, the arbitrator
concludes that the “Address Management System
Specialist” position is a part of the [Union]
bargaining unit and that it is a violation of Article 1.2
of the [CBA] to exclude the position and the disputed
work from the bargaining unit. The arbitrator shall
retain jurisdiction in this matter for ninety days from
the date of the report in order to resolve any problems
resulting from the remedy in the award. It is so
ordered and awarded.
The Postal Service, after receiving no response to its
request that the arbitrator withdraw the award, filed a petition
with the Board to clarify that the AMS Specialist classification
was excluded from the bargaining unit. The Regional Director,
although initially dismissing the petition in light of the parties’
agreement to arbitrate disputes about unit scope, granted the
petition on February 23, 2007 upon remand from the Board. On
remand the Union had disclaimed interest in representing postal
employees in the AMS Specialist classification, while
emphasizing that its disclaimer was not to “affect that part of the
award which found that the Postal Service violated the [CBA]
by failing to assign non-supervisory and non-managerial AMS
duties to the [Union] bargaining unit.” Letter from Cliff Guffey,
Executive Vice President, American Postal Workers Union,
ALF-CIO, to John Dockins, U.S. Postal Service, Jan. 29, 2007.
Meanwhile, on August 18, 2004 the Union had sued the
Postal Service to compel future arbitrations pursuant to the
settlement agreement. Following issuance of the 2003 Award,
the Union had filed a separate lawsuit to compel the Postal
Service to comply with the award. The district court
consolidated the lawsuits and denied the Postal Service’s
motions to dismiss or alternatively to stay. The district court
also denied without prejudice the Union’s motion for summary
4
judgment regarding future arbitration proceedings. In August
2006, the parties cross-moved for summary judgment. The
Union, while conceding that the 2003 Award was unenforceable
to the extent that it provided the AMS Specialist position was
included in the bargaining unit, argued that the award included
an independent, enforceable finding that the work performed by
AMS Specialists belonged to the unit. The Postal Service
argued that the award addressed only the placement of the AMS
Specialist position, and in the alternative, that the Union’s
interpretation would render the award unenforceable under
Section 7 of National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 157.
On August 7, 2007, the district court granted summary
judgment to the Postal Service, ruling that the 2003 Award
addressed only the question of the placement of the position.
Am. Postal Workers Union v. United States Postal Serv., 499 F.
Supp. 2d 24, 27 (D.D.C. 2007). Concluding from the analysis
accompanying the award that the arbitrator thought that position
placement was “the relevant issue to be decided” and that work
assignment was “a question to be addressed in the alternative, if
at all,” the district court reasoned that because the arbitrator had
found that the position should be included in the bargaining unit
the arbitrator must not have decided whether any or all of the
work should be assigned to the bargaining unit workers. Id.
The Union appeals, and our review is de novo. See Defenders
of Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008).
II.
The 2003 Award is the arbitrator’s interpretation of the
CBA. As such, judicial review of the award is “extremely
limited,” and the award may not be overturned on the basis of
even a serious error if the arbitrator was “even arguably
construing or applying the contract and acting within the scope
5
of his authority.” Teamsters Local Union No. 61 v. United
Parcel Serv., Inc., 272 F.3d 600, 604 (D.C. Cir. 2001) (internal
quotation marks omitted) (emphasis in original). However, the
primary issue here is not whether the arbitrator properly
construed the CBA or exceeded his authority, but what the 2003
Award means. To answer that question, a court first looks to the
four corners of the award, for arbitration awards “may be made
without explanation of [the arbitrators’] reasons and without a
complete record of their proceedings.” Wilko v. Swan, 346 U.S.
427, 436 (1953); see Sargent v. Paine Webber Jackson & Curtis,
Inc., 882 F.2d 529, 532 (D.C. Cir. 1989).
An arbitration award, as a conceptual matter, is to be
“treated as though it were a written stipulation by the parties
setting forth their own definitive construction of the contract.”
Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1475 (D.C. Cir.
1997) (quoting Theodore J. St. Antoine, Judicial Review of
Labor Arbitration Awards: A Second Look at Enterprise Wheel
and its Progeny, 75 MICH L. REV. 1137, 1140 (1977) (footnote
omitted)); see Am. Postal Workers Union v. United States Postal
Serv., 789 F.2d 1, 6-7 (D.C. Cir. 1986). Thus, the interpretation
of an arbitration award is, like the interpretation of a contract,
primarily a question of law, see O'Hara v. District No. 1-PCD,
56 F.3d 1514, 1522 (D.C. Cir. 1995), and like a contract,
analysis of what an arbitration award means must begin with its
text, see id. at 1523; cf. also Am. Fed’n of Gov’t Employees,
Local 2924 v. Fed. Labor Relations Auth., 470 F.3d 375, 381
(D.C. Cir. 2006). Because we conclude that the 2003 Award is
unambiguous on its face, we need not decide under what
circumstances a court may appropriately look to the arbitral
record to resolve an ambiguity and thereby render the award
enforceable, see, e.g., Ethyl Corp v. United States Steelworkers
of Am., 768 F.2d 180, 188 (7th Cir. 1985); see also Riley Stoker
Corp. v. Fidelity & Guar. Ins. Underwriters, 26 F.3d 581, 586
(5th Cir. 1994), rather than remand for the arbitrator to clarify
6
the award, see U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822,
830-31 (10th Cir. 2005); Tri-State Bus. Machs., Inc., v. Lanier
Worldwide, Inc., 221 F.3d 1015, 1019 (7th Cir. 2000).
The operative sentence of the 2003 Award is: “Having
carefully considered all evidence submitted by the parties
concerning this matter, the arbitrator concludes that the ‘Address
Management System Specialist’ position is a part of the [Union]
bargaining unit and that it is a violation of Article 1.2 of the
[CBA] to exclude the position and the disputed work from the
bargaining unit.” (emphasis added). Article 1.2 lists those job
classifications that are excluded from coverage under the CBA,
such as managerial and supervisory personnel, professional
employees, and mail handlers. The operative sentence contains
three findings by the arbitrator: (1) The AMS Specialist position
is a part of the bargaining unit; (2) excluding the position from
the bargaining unit violated the CBA; and (3) excluding the
work from the bargaining unit violated the CBA. The plain
meaning of the third finding unambiguously determined that
exclusion of the disputed work from the bargaining unit violated
the CBA. Nothing in the structure of the sentence suggests that
the third finding depends on or follows from the first or second
findings. Indeed, the only potential ambiguity in the language
of the award concerns the redundancy of the first and second
findings. But those findings are not at issue here as the Union
concedes they are unenforceable in light of the Board’s
determination that the AMS Specialist position is excluded from
the bargaining unit.
Contrary to the suggestion of the Postal Service, the
arbitrator’s analysis is entirely consistent with the plain meaning
of the 2003 Award. In section VI.B of the analysis, “Construing
the Intent of the Parties,” the arbitrator reviewed the text of the
CBA and concluded, in light of Article 1.2’s listing of excluded
job classifications and the interpretive canon of expressio unius,
7
that “it is reasonable to conclude that the parties intended the
work and the position to be in the bargaining unit.” Analysis at
22 (emphasis added). His analysis proceeded to address the
more difficult question of whether including the AMS Specialist
position in the bargaining unit was consistent with applicable
labor relations law. Concluding that it was, the arbitrator
nonetheless emphasized that the “parties’ collective bargaining
agreement ultimately is dispositive,” id. at 33, twice repeating
that Article 1.2 of the CBA precluded the Postal Service from
assigning the disputed work outside the bargaining unit. This
discussion amply supports the third finding of the award that the
CBA would be violated if the disputed work were excluded from
the bargaining unit. To the extent the Postal Service looks to so-
called Union “admissions” in pleadings, those “admissions”
cannot alter the plain meaning of the award.
The district court reached a different conclusion, relying
principally on the statement of issues at the beginning of the
arbitrator’s analysis. 499 F. Supp. 2d at 27. The arbitrator
described the questions before him as (1) whether the AMS
Specialist position should be included within the bargaining
unit, and (2) “[a]lternatively does this position contain duties
belonging in the [Union] bargaining unit?” Analysis at 3. The
statement of the issues cannot bear the weight that the district
court placed upon it. Just as parol evidence may not be used to
vary the plain meaning of a contract, see Am. Fed’n of Gov’t
Employees, Local 2924 v. Fed. Labor Relations Auth., 470 F.3d
375, 383 (D.C. Cir. 2006), the arbitrator’s analysis generally
cannot vary the plain meaning of the award, see Ethyl Corp.,
768 F.2d at 188; cf. also Enterprise Wheel, 363 U.S. at 598. The
award and the accompanying analysis in fact address both
position placement and work assignment. The arbitrator
explained that he did not think it possible to separate the parties’
intent as to the placement of the AMS Specialist position from
their intent as to assignment of the work performed by AMS
8
Specialists. Analysis at 34-36. This is hardly surprising since
the parties agree that assigning the duties performed by AMS
Specialists to the bargaining unit means that only members of
the bargaining unit will be able to perform the non-supervisory,
non-managerial AMS Specialist duties. See Appellee’s Br. at
24-25; Appellant’s Reply Br. at 10. But even though
consideration of position placement and work assignment may,
in practice, overlap, see Local 666 v. NLRB, 904 F.2d 47, 50-51
(D.C. Cir. 1990), in this case the two were listed as conceptually
distinct issues and they remained that way in the award itself.
The Postal Service contends, as a result, that enforcing the
2003 Award would violate the rights of currently employed
AMS Specialists under Section 7 of the NLRA because these
employees would be forced to choose between losing their jobs
and being represented by the Union in the absence of majority
consent thereto. It maintains that because the AMS Specialist
position has been historically excluded from any bargaining
unit, neither the position nor its work may be accreted into an
existing bargaining unit. The Union observes that the 2003
Award allows it to reclaim bargaining unit work and that it has
already disclaimed interest in representing the AMS Specialist
employees and thus those occupying that position would
continue to be non-union employees. Appellant’s Reply Br. at
9-10. Although a court owes deference to the arbitrator’s
interpretation of the CBA, an arbitration award that is in
“explicit conflict” with “other laws and legal precedents,”
United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 43
(1987) (internal quotation marks omitted); see also Kaiser Steel
Corp. v. Mullins, 455 U.S. 72, 83-84 (1982), is unenforceable.
It is not immediately apparent whether the transfer of AMS
Specialist duties to the bargaining unit would be an unlawful
accretion under Board precedent. See Kaiser Found. Hosp., 343
N.L.R.B. 57 (2004); Lockheed Martin Tactical Aircraft Sys., 331
N.L.R.B. 1407 (2000). The district court did not reach the
9
question of enforceability. Accordingly, we reverse and remand
the case for the district court to decide in the first instance
whether the third finding in the operative sentence of the 2003
Award is enforceable. See, e.g., Steele v. Schafer, 535 F.3d 689,
695 (D.C. Cir. 2008).