United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2009 Decided December 18, 2009 

No. 08-5467 

NATIONAL POSTAL MAIL HANDLERS UNION, A DIVISION OF 

THE LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, 

APPELLANT

v. 

AMERICAN POSTAL WORKERS UNION AND UNITED STATES 

POSTAL SERVICE, 

APPELLEES

Consolidated with 08-5487 

Appeals from the United States District Court 

for the District of Columbia 

(No. 1:06-cv-01986-JR) 

Ray E. Donahue, Special Assistant U.S. Attorney, argued 

the cause for appellant United States Postal Service. With 

him on the briefs was R. Craig Lawrence, Assistant U.S. 

Attorney. Claire M. Whitaker, Assistant U.S. Attorney, 

entered an appearance. 
2 

Ramya Ravindran argued the cause for appellant National 

Postal Mail Handlers Union. With her on the briefs was 

Andrew D. Roth. 

Anton G. Hajjar argued the cause and filed the brief for 

appellee American Postal Workers Union. 

Before: SENTELLE, Chief Judge, and GRIFFITH and 

KAVANAUGH, Circuit Judges. 

 Opinion for the Court filed by Circuit Judge 

KAVANAUGH, with whom Circuit Judge GRIFFITH joins. 

 Dissenting Opinion filed by Chief Judge SENTELLE. 

 KAVANAUGH, Circuit Judge: This is an arbitration case. 

Two unions of postal workers – the American Postal Workers 

Union and the National Postal Mail Handlers Union – 

disagreed over which union was entitled to perform certain 

work at a U.S. Postal Service facility in Oakland. The Postal 

Service assigned the tasks to NPMHU’s mail handlers. 

According to APWU, that assignment contravened a 1979 

Postal Service directive regarding allocation of work. APWU 

brought the matter to arbitration and prevailed in the 

arbitration proceeding. 

NPMHU then sued in federal court to overturn the 

arbitrator’s decision. NPMHU claimed, in particular, that the 

arbitrator erred in finding the dispute arbitrable under the 

parties’ contract. Applying the extremely deferential standard 

of review for labor arbitration decisions, the District Court 

upheld the arbitrator’s decision on arbitrability even though it 

was, in the court’s words, “probably erroneous.” 578 F. 

Supp. 2d 160, 162 (D.D.C. 2008). We too acknowledge that 

the arbitrator probably erred as a matter of contract 
3 

interpretation. Yet in light of the deference courts must afford 

to a labor arbitrator’s contract interpretation – including an 

arbitrator’s decision on arbitrability where, as here, the parties 

agree to present that issue to the arbitrator – we agree with the 

District Court that we must uphold the arbitrator’s decision in 

this case. We therefore affirm the judgment of the District 

Court. 

I 

A 

 In 1979, the Postal Service issued a directive allocating 

responsibility for various mail processing functions between 

two crafts of postal employees: clerks and mail handlers. The 

American Postal Workers Union represents clerks, and the 

National Postal Mail Handlers Union represents mail 

handlers. We will refer to those unions as APWU and 

NPMHU. 

In 1992, APWU, NPMHU, and the Postal Service agreed 

on how to resolve disputes over which union should perform 

certain work (what the Agreement refers to as “jurisdictional 

disputes”). Under that 1992 Agreement, the parties refer 

disputes over work assignments to a Local Dispute Resolution 

Committee that includes representatives of the three parties. 

If the parties deadlock at that local level, an aggrieved party 

may appeal to a Regional Dispute Resolution Committee. If 

deadlock persists, an aggrieved party may appeal to “final and 

binding” arbitration before an agreed-upon arbitrator. 

The 1992 Agreement also provides: “Effective with the 

signing of this Agreement, no new disputes will be initiated at 

the local level by either union challenging jurisdictional work 

assignments in any operations as they currently exist. Except 
4 

as otherwise specifically provided . . . all local craft 

jurisdictional assignments which are not already the subject of 

a pending locally initiated grievance will be deemed as a 

proper assignment for that facility.” J.A. 100 (emphasis 

added). 

B 

In 2001, a dispute arose over which union was 

responsible for scanning foreign mail on the loading dock at 

the U.S. Postal Service’s Oakland International Service 

Center. At the time, mail handlers (represented by NPMHU) 

performed that work. APWU filed two grievances claiming 

that clerks, not mail handlers, should perform the tasks in 

question. The parties referred APWU’s grievances to the 

Local Dispute Resolution Committee, but the committee was 

unable to agree on a resolution. The parties next referred the 

issue to a Regional Dispute Resolution Committee; again, no 

resolution ensued. 

APWU then appealed both grievances to arbitration. 

Before the arbitrator, NPMHU and the Postal Service 

maintained that the grievances were not arbitrable because (i) 

they concerned an assignment of work that had initially been 

made before 1992 and (ii) the parties’ 1992 Agreement barred 

grievances about such pre-1992 assignments. 

The arbitrator determined that the dispute was arbitrable. 

He read the 1992 Agreement to incorporate a “continuing 

violations” theory under which he could assess the 

appropriateness of certain pre-1992 assignments to the extent 

they continued post-1992. The arbitrator then addressed the 

merits and ruled in favor of APWU, concluding that the 

Postal Service had improperly assigned the work in question 

to mail handlers rather than to clerks. 
5 

NPMHU filed suit under 39 U.S.C. § 1208(b) and sought 

to have the arbitrator’s award vacated on the ground that the 

arbitrator had erred in finding the dispute arbitrable. NPMHU 

contended that arbitration was not available to resolve 

disputes over work assignments that had initially been made 

before 1992. The Postal Service agreed with NPMHU that 

the arbitrator had erred on the arbitrability issue. 

The District Court opined that the arbitrator’s decision on 

arbitrability was “probably erroneous.” 578 F. Supp. 2d 160, 

162 (D.D.C. 2008). But the court nonetheless granted 

summary judgment to APWU. Applying the courts’ 

deferential standard of review of labor arbitration decisions, 

the court found no basis to disturb the arbitrator’s 

determination that the dispute was arbitrable. Id. at 163. 

NPMHU and the Postal Service appeal; our review is de novo. 

See U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 

686, 692 (D.C. Cir. 2009).

II 

A 

Section 1208(b) of Title 39 authorizes federal district 

courts to hear suits “for violation of contracts between the 

Postal Service and a labor organization representing Postal 

Service employees, or between any such labor organizations.” 

The Postal Service and a postal workers’ union may of course 

agree to arbitration as a means to efficiently resolve 

contractual disputes. Section 1208(b) does not supply a 

standard for judicial review of arbitration decisions. We have 

held, however, that the standard for judicial review of 

arbitration awards in the postal context is the same as the 

standard articulated by the Supreme Court for judicial review 
6 

of labor arbitration awards under § 301(a) of the LaborManagement Relations Act of 1947. See U.S. Postal Serv. v. 

Am. Postal Workers Union, 553 F.3d 686, 689 (D.C. Cir. 

2009) (same standard applies because statutes are “virtually 

identical”) (quoting U.S. Postal Serv. v. Nat’l Rural Letter 

Carriers’ Ass’n, 959 F.2d 283, 286 (D.C. Cir. 1992)). 

The Supreme Court has long applied a very deferential 

standard for judicial review of labor arbitration decisions. In 

the foundational case, the Court ruled that a labor arbitrator’s 

decision must be upheld so long as it “draws its essence from 

the collective bargaining agreement.” United Steelworkers of 

Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960). 

That standard is met, the Court explained, if the arbitrator 

“premise[d] his award on his construction of the contract.” 

Id. at 598. 

On several occasions, the Supreme Court has reiterated 

and reinforced that deferential standard of review for labor 

arbitration decisions. Most recently and perhaps most 

emphatically, in Major League Baseball Players Ass’n v. 

Garvey, 532 U.S. 504 (2001), the Court stated that courts “are 

not authorized to review the arbitrator’s decision on the merits 

despite allegations that the decision rests on factual errors or 

misinterprets the parties’ agreement.” Id. at 509. Sending a 

clear message to federal courts about their proper role in labor 

arbitration matters, the Supreme Court did not mince words or 

sugar-coat the point: If an arbitrator is “even arguably 

construing or applying the contract and acting within the 

scope of his authority,” then a court may not overturn his 

decision, even if the court is convinced the arbitrator 

committed “serious error.” Id. (quoting E. Associated Coal 

Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 

62 (2000)). Where “no dishonesty is alleged,” a court may 

vacate a labor arbitration award only if the arbitrator “strays 
7 

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). See also United 

Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 

29, 36-38 (1987); AT&T Techs., Inc. v. Commc’ns Workers of 

Am., 475 U.S. 643, 648 (1986). 

In short, the relevant question under the Supreme Court’s 

precedents is not whether the arbitrator erred – or even 

seriously erred – in interpreting the contract. Rather, the 

question is whether the arbitrator was “even arguably 

construing or applying the contract.” Garvey, 532 U.S. at 509 

(quoting E. Associated, 531 U.S. at 62). Courts do not review 

the substantive reasonableness of a labor arbitrator’s contract 

interpretation. See id.; see also Harry T. Edwards, Judicial 

Review of Labor Arbitration Awards: The Clash Between the 

Public Policy Exception and the Duty To Bargain, 64 CHI.-

KENT L. REV. 3, 3-8 (1988). This extraordinarily deferential 

standard is essential to preserve the efficiency and finality of 

the labor arbitration process. These critical principles, which 

can elude parties who sometimes quixotically seek to overturn 

labor arbitration decisions, guide our approach to labor 

arbitration generally and to this case in particular.

B 

Before applying those bedrock principles to this dispute, 

we must address one additional point. The Supreme Court’s 

deferential standard of judicial review applies not just to a 

labor arbitrator’s determination on the merits, but also to the 

arbitrator’s threshold decision that the dispute was arbitrable, 

at least so long as the parties agreed contractually or by 

consent to present the question of arbitrability to the 

arbitrator. See AT&T Techs., 475 U.S. at 649; U.S. Postal 

Serv., 553 F.3d at 692-93. If, on the other hand, an arbitration 
8 

agreement does not say who is to decide the question of 

arbitrability and the parties do not otherwise consent to 

arbitration of that question, then arbitrability is an issue for de 

novo judicial determination. See AT&T Techs., 475 U.S. at 

649; Madison Hotel v. Hotel & Rest. Employees, Local 25, 

AFL-CIO, 144 F.3d 855, 857 n.1 (D.C. Cir. 1998) (en banc). 

The parties in this case agree that, under the contract, the 

issue of arbitrability was for the arbitrator to decide. 

Therefore, as the parties further agree, our review of the 

arbitrator’s decision on arbitrability in this case is governed 

by the deferential standard articulated by the Supreme Court 

for judicial review of labor arbitration decisions. 

C 

Applying the relevant standard articulated by the 

Supreme Court, we must ascertain whether the arbitrator in 

this matter was “even arguably construing or applying the 

contract” when he found the dispute arbitrable. See Garvey, 

532 U.S. at 509 (quoting E. Associated, 531 U.S. at 62). 

The parties’ 1992 Agreement generally barred arbitration 

of disputes over work assignments that were initially made 

before 1992, unless a grievance was already pending as of the 

time of the Agreement. The Agreement thus imposed a 

statute-of-limitations-like bar on arbitration of grievances 

relating to pre-1992 work assignments. 

The Oakland dispute concerned an assignment of certain 

duties to mail handlers that was initially made before 1992. 

APWU had not filed a grievance by the time the parties 

entered the 1992 Agreement. Therefore, the arbitrator should 

have ruled that the grievances brought by APWU were not 

arbitrable. 
9 

The arbitrator nonetheless found the dispute arbitrable. 

The arbitrator concluded that the parties could challenge work 

assignments initially made before 1992 if those assignments 

continued after 1992. According to the arbitrator, the contract 

language must be construed in light of the common-law 

“continuing violations” doctrine. In support of that 

construction of the contract, the arbitrator relied on and 

quoted from a respected arbitration treatise: “Many arbitrators 

have held that ‘continuing’ violations of the agreement (as 

opposed to a single isolated and completed transaction) give 

rise to ‘continuing’ grievances in the sense that the act 

complained of may be said to be repeated from day to day – 

each day there is a new occurrence . . . .” J.A. 184 (quoting 

FRANK ELKOURI & EDNA ASPER ELKOURI, HOW ARBITRATION 

WORKS 152-53 (3d ed. 1973)). The treatise further explains 

that grievances arising out of such “continuing” violations 

may be filed “at any time.” ELKOURI & ELKOURI, HOW 

ARBITRATION WORKS 218-19 (Alan Miles Ruben ed., 6th ed. 

2003). 

In this Court, NPMHU and the Postal Service argue that 

the arbitrator jumped the rails in relying on the continuing 

violations doctrine to construe the contract. In their view, the 

contractual language regarding pre-1992 assignments was so 

clear and the arbitrator’s error so gross that it cannot be said 

that he was “even arguably construing or applying the 

contract.” Garvey, 532 U.S. at 509 (quoting E. Associated, 

531 U.S. at 62). According to NPMHU and the Postal 

Service, the only plausible explanation for the arbitrator’s 

botched decision is that the arbitrator was dispensing “his 

own brand of industrial justice.” Id. (quoting Enter. Wheel, 

363 U.S. at 597). We think that argument reflects a 

misunderstanding of contract interpretation principles and of 

the proper role of courts in reviewing labor arbitration 
10 

decisions. The fact that an arbitrator relies on a substantive 

background principle of law or an established canon of 

construction – and does not follow the plain text of a contract 

– does not automatically mean the arbitrator has gone rogue. 

As the Supreme Court has explained, a labor arbitrator is “not 

confined to the express provisions of the contract,” but may 

also look to other sources – including the “industrial common 

law” – for help in construing the agreement. United 

Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 

U.S. 574, 581-82 (1960). The Court has further stated that an 

arbitrator may “look for guidance from many sources,” and 

the award is legitimate if it can be “read as embodying a 

construction of the agreement itself, perhaps with the 

arbitrator looking to ‘the law’ for help in determining the 

sense of the agreement.” Enter. Wheel, 363 U.S. at 597-98. 

Relying on traditional canons of construction or other settled 

interpretive principles – and not merely on the plain text of a 

contract – might be seriously misguided in certain cases, but 

such reliance cannot be dismissed as the arbitrator’s 

dispensing “his own brand of industrial justice.” Indeed, the 

arbitrator’s approach here bore some resemblance to what 

courts have done in applying the continuing violations 

doctrine in federal statute of limitations cases. See, e.g., 

Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997). In 

short, although the arbitrator’s use of the continuing 

violations doctrine to construe this contract may have been 

badly mistaken, it was not outside traditional juridical and 

interpretive bounds: The arbitrator was “arguably construing 

or applying the contract.” Garvey, 532 U.S. at 509 (quoting 

E. Associated, 531 U.S. at 62). 

NPMHU and the Postal Service separately posit that the 

arbitrator never actually addressed the issue of arbitrability, 

but merely assumed the dispute was arbitrable. They argue 

that the arbitrator’s discussion of the continuing violations 
11 

doctrine in his opinion concerned a question about the general 

timeliness of APWU’s grievances, not the issue of 

arbitrability under the express terms of the Agreement. This 

is a red herring. NPMHU and the Postal Service argued to the 

arbitrator that the dispute was not arbitrable because the 

grievance concerned a pre-1992 assignment, APWU had not 

filed a grievance by the time of the 1992 Agreement, and 

APWU did not otherwise meet the conditions specified in the 

contract for bringing a post-1992 grievance. NPMHU and the 

Postal Service raised no other argument against arbitrability 

and no other timeliness-based argument. When the arbitrator 

discussed the continuing violations doctrine, he was 

addressing this lone argument raised by NPMHU and the 

Postal Service against arbitrability.*

* * * 

Had we been the arbitrators in this case, we would have 

followed the plain terms of the Agreement and ruled for 

NPMHU and the Postal Service. But the arbitrator was at 

least “arguably construing or applying” the Agreement in 

reaching his decision. Garvey, 532 U.S. at 509 (quoting E. 

Associated, 531 U.S. at 62). Therefore, under the Supreme 

Court’s precedents, the courts may not overturn the 

arbitrator’s award. We affirm the judgment of the District 

Court. 

So ordered. 

 *

 In his decision, the arbitrator offered an additional ground for 

finding APWU’s grievance to be arbitrable. He suggested that the 

parties had “all agreed” to have him decide the merits of the 

grievance, in essence waiving any objections to arbitrability. J.A. 

183. Because we find that the arbitrator’s reliance on the 

continuing violations doctrine is sufficient to sustain his decision on 

arbitrability, we do not consider that alternative ground. 
SENTELLE, Chief Judge, dissenting: The majority accurately

states the facts underlying this controversy, and I have no

quarrel with its recitation of the general principles of law

applicable to the review of arbitration decisions. However, I

cannot agree that the principles, as applied to the facts in this

case, lead to the majority’s result. 

As the majority states, the appellant, National Postal Mail

Handlers Union, and appellee, American Postal Workers’ Union

(APWU), entered an agreement with the United States Postal

Service in 1992 which provided: “Effective with the signing of

this agreement, no new disputes will be initiated at the local

level by either union challenging jurisdictional work

assignments in any operations as they currently exist.” Maj op.

at 4 (emphasis added by the court). In 2001, APWU filed two

grievances underlying the present appeal concerning union

jurisdiction over the scanning of foreign mail at a USPS

international service center. These grievances concerned work

assignments that were made before 1992 and which seem to be

clearly within the compass of the language of the agreement

quoted above. Indeed, both the district court and the majority of

this court agree that the agreement rendered those assignments

not subject to grievance and arbitration. Nonetheless, the

arbitrator, relying on a theory of “continuing violations,” held

that the grievances were arbitrable and ruled for APWU.

Despite the all but universal agreement that the parties had

contracted in 1992 that no such grievance as this was to be filed,

the district court and the majority would uphold the award

because of the deferential standard of review of labor arbitration

decisions. The majority relies on the numerous cases of this and

the Supreme Court affording the greatest of deference to

arbitrators’ decisions. For example, in Major League Baseball
2

Players Ass’n v. Garvey, 532 U.S. 504 (2001), as the majority

recalls, the Court held that “[c]ourts are not authorized to review

the arbitrator’s decision on the merits despite allegations that the

decision rests on factual errors or misinterprets the parties’

agreement.” 532 U.S. at 509 (quoted at Maj. Op. 6). It is also

true, as the majority sets forth, that our broad deference to

arbitrators extends even to the question of arbitrability. See,

e.g., USPS v. APWU, 553 F.3d 686, 692-93 (D.C. Cir. 2009).

However, broad as is our deference to arbitrators’ decisions, it

is not limitless.

In assessing the limits of the deference owed an arbitrator’s

decision, the Supreme Court has told us that the arbitrator’s

“award is legitimate only so long as it draws its essence from the

collective bargaining agreement.” United Steelworkers v.

Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). I

submit that when an arbitrator’s ruling on arbitrability is 180

degrees removed from what the majority describes as the “plain

terms of the agreement” defining the breadth of the arbitrable

issues between the parties, that award in no sense “draws its

essence” from the agreement.

Granted, the arbitrator and the majority recite general

principles of labor and arbitration law which in the absence of

the clarity of the agreed exclusion might support arbitrability of

the underlying grievance. However, as the Supreme Court

explained in Enterprise Wheel:

[The arbitrator] may of course look for guidance from many

sources, yet his award is legitimate only so long as it draws

its essence from the collective bargaining agreement. When

the arbitrator’s words manifest an infidelity to this

obligation, courts have no choice but to refuse enforcement

of the award.
3

As we have previously noted, “[i]f the arbitrator has rendered a

judgment based on external legal sources, wholly without regard

to the terms of the parties’ contract, then the award could not be

said to draw its essence from the contract.” APWU v. USPS, 789

F.2d 1, 3 (D.C. Cir. 1986). As the arbitrator in the decision

before us did precisely that, I would reverse the district court’s

grant of summary judgment for the defendant and its denial of

summary judgment to the plaintiff. It appears to me that the

arbitrator based his decision entirely on his external legal

theories relating to “continuing violation” without regard to the

express terms of the parties’ agreement excluding grievances

over pre-1992 assignments. In his award, the arbitrator himself

recognized that “[t]he language [of the agreement] clearly points

in the direction of limiting the filing of grievances for existing

work . . . .” That the arbitrator recited the agreement’s language,

while rendering it utterly ineffectual, does not change the course

of his illegitimate reasoning. I would therefore hold that the

arbitrator’s decision fails even in light of the standard of review

mandated by our precedent.

I respectfully dissent.