Holsum Bakery Inc. v. Bakery, Confectionary, Tobacco Workers & Grain Millers, Local 232

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

HOLSUM BAKERY INCORPORATED, No. 16-16422

Petitioner-Appellee, D.C. No. 2:15-CV-00925-SPL

v.
MEMORANDUM*
BAKERY, CONFECTIONARY,
TOBACCO WORKERS AND GRAIN
MILLERS, LOCAL 232,

Respondent-Appellant.

Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding

Submitted October 20, 2017**
San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,*** District
Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.

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 Holsum Bakery Incorporated (“Holsum”) operates a wholesale bakery in

Phoenix. Local No. 232 of the Bakery, Confectionary, Tobacco Workers and Grain

Millers Union (“the Union”) entered into a collective bargaining agreement (“CBA”)

with Holsum in 2009 on behalf of some of Holsum’s workers. In 2012, the Union

filed a grievance to challenge Holsum’s termination of its historical practice of

paying “lap time” (short for “elapsed time”) at one-and-one-half times an

employee’s hourly rate for shifts worked on scheduled days off. Holsum denied the

grievance and the Union initiated arbitration. The arbitrator issued an award in favor

of the Union.

Holsum then filed a complaint in district court under § 301 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and moved to vacate the

arbitrator’s award. The Union cross-moved to confirm the award. The district court

granted Holsum’s motion. We have jurisdiction over the Union’s appeal under 28

U.S.C. § 1291 and reverse and remand with instructions to confirm the award.

1. The district court erred in concluding that the arbitrator’s award did not

“draw its essence” from the CBA. See Stead Motors of Walnut Creek v. Auto.

Machinists Lodge No. 1173, 886 F.2d 1200, 1205 n.6 (9th Cir. 1989) (en banc). An

arbitration award must be upheld “as long as the arbitrator is even arguably

construing or applying the contract and acting within the scope of his authority.”

United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987).

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This is true even if the reviewing court is “convinced that the arbitrator misread the

contract or erred in interpreting it.” Va. Mason Hosp. v. Wash. State Nurses Ass’n,

511 F.3d 908, 913-14 (9th Cir. 2007).

The arbitrator in this case concluded that the use of the word “all” in § 4.C of

the CBA “means that every hour that is scheduled or required to be worked by an

employee that is not voluntary is to be compensated.” She also concluded that the

specific language in § 4.C controlled over general language elsewhere in the CBA

governing shift scheduling. And, the arbitrator found that, contrary to Holsum’s

assertions, employees did have regularly scheduled days off. Finally, she concluded

that Holsum violated the CBA when it refused to pay “lap time” to “all employees

who were scheduled or required to work on their scheduled day off.” Because the

arbitrator interpreted and applied the CBA in reaching these conclusions, the award,

even if incorrect, drew its essence from the agreement.

2. The district court also erred in concluding that the arbitrator’s award

was “so inconsistent and full of mistakes [that] any practical application of the

Award is impossible” and therefore that “a final and definite award was not made.”

An award is enforceable “even in the face of erroneous misinterpretations of law”

unless it “exhibits a manifest disregard of law.” G.C. & K.B. Invs., Inc. v. Wilson,

326 F.3d 1096, 1105 (9th Cir. 2003) (citation omitted). At worst, the arbitrator in

this case may have misinterpreted the CBA, but she did not disregard it, and the

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plausibility of her interpretation is beyond judicial scrutiny. Sw. Reg’l Council of

Carpenters v. Drywall Dynamics, Inc., 823 F.3d 524, 531-32 (9th Cir. 2016). Nor is

implementation of the award impossible; the award simply requires Holsum to

award “lap time” pay to employees working on their regularly scheduled days off.

3. The Union requests attorney’s fees, citing Holsum’s “unjustified

refusal to abide by an arbitrator’s award.” See Int’l Union of Petroleum & Indus.

Workers v. W. Indus. Maint., Inc., 707 F.2d 425, 428 (9th Cir. 1983). But, Holsum

did not refuse to abide by the arbitrator’s award. Rather, it sought judicial review of

the award, as was its right. Because Holsum’s arguments were not “frivolous,” see

United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382-

83 (9th Cir. 1984), we deny the fee request.

REVERSED and REMANDED.

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