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
2

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
3

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”). 
7

*

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).

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
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.