United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 2009 Decided July 10, 2009

No. 08-7092

VERIZON WASHINGTON, D.C. INC.,

APPELLEE

v.

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, AS

DESIGNATED AGENT AND REPRESENTATIVE FOR LOCAL 2336,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-01460-PLF)

Stephen M. Koslow argued the cause for the appellant.

James B. Coppess was on brief.

Julia M. Broas argued the cause for the appellee. R. Scott

Medsker and Willis J. Goldsmith were on brief. Jacqueline M.

Holmes entered an appearance.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Separate concurring statement filed by Circuit Judge

HENDERSON.
2

1

A General Clerk is responsible for “the handling of orders and

preparation of reports, accessing multiple systems for inputting

retrieval of data on a computer, and heavy client interfacing at all

levels of management[.]” Opinion and Award of Arbitrator Susan T.

Mackenzie, Commc’ns Workers of Am., Local 2336 v. Verizon

Washington, D.C. Inc., CWA Case No. 2-04-21, at 8 (Feb. 28, 2006)

(quotations omitted) (Mackenzie Award). An RCMAC Clerk, on the

other hand, must “translat[e] . . . complex codes in switches . . . [,]

ensure that the changes made in one service do not affect other

services, [and] engage in time-sensitive projects and coordinating

work.” Id. at 10. The General Clerk position is “semi-skilled” while

KAREN LECRAFT HENDERSON, Circuit Judge: The

Communications Workers of America, AFL-CIO (CWA)

appeals from the district court’s order granting summary

judgment to Verizon Washington, D.C. Inc. (Verizon), vacating

and remanding an arbitration award. Verizon Washington, D.C.

Inc. v. Commc’ns Workers of Am., 569 F. Supp. 2d 121, 129

(D.D.C. 2008). Because we conclude that the arbitration award

“draws its essence from the collective bargaining agreement,”

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36

(1987) (citation and quotation marks omitted), we reverse. 

I.

 Sometime in 1997, Verizon began to assign its Corporate

Voice Mail Group employees (Voice Mail Clerks) additional

duties. For a time, Verizon paid the Voice Mail Clerks extra for

performing the new duties but stopped doing so at some point

between 1998 and 2000. On December 9, 2001, the CWA filed

a grievance on behalf of the Voice Mail Clerks, asserting that

they were being unfairly treated in that they were performing the

duties associated with a higher position (RCMAC Clerk) but

were classified at, and paid the salary of, a lower position

(General Clerk).1

 On March 6, 2002, Verizon denied the
3

the RCMAC Clerk position is “technical.” Opinion and Award of

Arbitrator Paul F. Gerhart, Verizon Washington, D.C. Inc. v.

Commc’ns Workers of Am., Local 2336, Parties’ Case No. 2001-

91650, at 6 (May 30, 2007) (Gerhart Award).

2

Article 16B.1(a) of the CBA requires Verizon to “notify the

Union in writing of [a new] job title or classification and . . . furnish

a job description of the duties and the wage rates and schedules

initially determined for such job titles and classifications. . . .

Following such notice to the [CWA], [Verizon] may proceed to staff

such job titles or classifications.” CBA at 24. Article 16B.1(b) gives

the CWA, once notified, the right to “initiate negotiations concerning

the initial wage rates or schedules established by [Verizon].” Id.

grievance and the CWA appealed. During the grievance

process, Verizon conducted a job evaluation of the Voice Mail

Clerks and eventually, on June 2, 2003, determined that the

Voice Mail Clerk position was appropriately classified as a

General Clerk position. On July 28, 2003, the CWA submitted

its grievance to arbitration pursuant to Article 13 of the

collective bargaining agreement between Verizon and the CWA.

See General Agreement Between CWA and Verizon, Inc. at 18-

19 (Aug. 3, 2003) (CBA). 

The dispute centers on Article 16B of the CBA, which sets

forth the procedure Verizon and the CWA must follow

“[w]henever the Company determines it appropriate to create a

new job title or job classification in the bargaining unit, or to

restructure or redefine an existing one.” CBA at 24. The

procedure is “the exclusive means by which [the CWA] may

contest the schedule of wage rates which [Verizon] sets for any

new, restructured, or redefined job title or classification.” Id. at

25. Section 1(e) of Article 16B allows the CWA to demand, “if

the parties are unable to reach agreement within sixty (60) days

following receipt of notice from [Verizon],”2

 “that the issue of

an appropriate schedule of wage rates be submitted for
4

3

Article 16B.1(f) provides in part:

At the request of either party, a hearing shall be held to

receive . . . evidence. Any such hearing shall be held

within thirty (30) days after the matter is referred to the

resolution to a neutral third party,” that is, an arbitrator. Id.

Significantly, if the arbitrator devises a different schedule of

wage rates, “the new schedule shall be placed in effect

retroactive to the date the change or new job was implemented,

except that in no event shall the retroactive effect exceed 150

days.” Id. The parties are bound by the arbitrator’s decision. 

After arbitration hearings were held on April 1, 2005, July

14, 2005 and October 20, 2005, an arbitrator issued an award on

February 28, 2006, concluding that Verizon “violate[d] Article

16.B by failing to give notice to [the CWA] and afford an

opportunity to negotiate over its assignment of duties to Voice

Mail Clerks outside of the scope of their General Clerk Job

Description, constituting a redefinition or restructure of the

existing job title for purposes of Article 16.B.” Opinion and

Award of Arbitrator Susan T. Mackenzie, Commc’ns Workers

of Am., Local 2336 v. Verizon Washington, D.C. Inc., CWA

Case No. 2-04-21, at 12 (Feb. 28, 2006) (Mackenzie Award).

Accordingly, the arbitrator directed Verizon to comply with

Article 16B’s notification and negotiations requirements within

60 days of the issuance of her award. Id. at 13.

Pursuant to the award, Verizon and the CWA began

negotiations but soon reached an impasse. The CWA, invoking

its right to “demand that the issue of an appropriate schedule of

wage rates be submitted for resolution to a neutral third party,”

CBA at 25, then requested arbitration at some point before

August 9, 2006. Another arbitrator heard the matter on

September 15, 2006 and issued his award eight months later, on

May 30, 2007.3

 The arbitrator summarized the three issues as
5

neutral third party. . . . A written decision as to the

appropriate schedule of wage rates will be rendered by

the neutral third party within sixty (60) days of the date

that the matter is referred for resolution. . . .

CBA at 25 (emphasis added).

4

The arbitrator misstated the CWA’s interpretation here.

December 9, 2001 is the date on which the CWA filed its initial

grievance, see Mackenzie Award at 4; Gerhart Award at 17, and the

CWA argued that it is to this date that the retroactivity award should

follows:

1. The threshold issue before the arbitrator is to

determine what discretion the Agreement affords

him in fashioning an award in this matter. That is, is

the arbitrator constrained to choose between the

positions of the parties as in “last offer” arbitration,

or is he free to identify and award some other

outcome in the matter?

2. The principal issue before the arbitrator is, of course,

to determine an award with respect to the appropriate

wage schedule for the Voice Mail Clerks.

3. Finally, the arbitrator must determine a remedy.

This will require the arbitrator to interpret the

language of Article 16B.1(f) which states that “in no

event shall the retroactive effect exceed 150 days.”

Did the drafters of the Agreement intend, as the

Company contends, that the new wage rate for the

Voice Mail Clerks must be effective no more than

150 days prior to the date of the instant arbitrator’s

award, or, pursuant to the Union’s interpretation,

that the revised wage rate must have effect 150 days

prior to [sic][4] the Union’s initial grievance, i.e.,
6

reach back, see Gerhart Award at 17. The error is simply a scrivener’s

error, however, because the arbitrator correctly implemented the

CWA’s interpretation in spelling out his remedy. See infra pp. 12-14.

December 9, 2001?

Opinion and Award of Arbitrator Paul F. Gerhart, Verizon

Washington, D.C. Inc. v. Commc’ns Workers of Am., Local

2336, Parties’ Case No. 2001-91650, at 38-39 (May 30, 2007)

(emphasis added) (Gerhart Award). The arbitrator determined

that after two years of service, a Voice Mail Clerk should be

“allowed to apply for and immediately be promoted to the

Senior Voice Mail Clerk job title.” Id. at 54. He also held that

“[a]ll current Voice Mail Clerks with two or more years of

actual service in that title shall immediately be offered the

opportunity to upgrade to the Senior Voice Mail Clerk job” and

that any Voice Mail Clerk with two or more years of actual

service as of December 9, 2001 “shall receive a pay adjustment

reflecting the difference between what she (or he) actually

earned and what she would have earned had she been properly

classified as of that date.” Id. at 57 (emphasis omitted). In

setting the retroactivity award, the arbitrator reasoned as

follows:

. . . Inasmuch as the upgrade of experienced Voice Mail

Clerks should have taken place in 2001, the effective

date of the creation of the Senior Voice Mail job title

shall be December 9, 2001, the date of the Union’s

grievance in this matter. . . .

The arbitrator is mindful of the admonition in Article

16B.1(f) which asserts that “in no event shall the

retroactive effect exceed 150 days.” Had [Verizon] not

violated the Agreement as found by Arbitrator

Mackenzie, and had [it] properly notified [the CWA] of
7

5

Although the arbitrator did not specify how he settled on the 150-

day time period between the CWA’s December 9, 2001 grievance and

the hypothetical May 9, 2002 award, it appears that he relied on the

timetable set out in the CBA. Under the CBA, the CWA has 60 days

from Verizon’s initial notice of the creation, restructuring or

redefinition of a job title or classification in which to negotiate and

reach agreement. CBA at 25. If no agreement is reached, the CWA

has an additional 30 days to demand arbitration. Id. The arbitrator

has 60 days from the date the matter is referred for resolution to issue

his award. Id.; see supra note 3. Added together, 150 days from the

date of the CWA’s grievance is May 9, 2002.

the changes in the Voice Mail Clerk job in response to

[the CWA’s] December 2001 grievance, and had the

matter been processed and ultimately referred to a

“neutral third party” as required by Article 16B.1(e) and

(f), a decision by the neutral third party would have been

rendered on or about May 9, 2002 which is 150 days

after December 9, 2001.[5] Thus, in the absence of the

contractual violation by [Verizon], this neutral third

party award would have been effective on December 9,

2001, fully within the boundaries of retroactivity

prescribed by the [CBA]. It would shock the

sensibilities of any reasonable person if [Verizon] were

allowed to benefit from its own bre[a]ch of the [CBA],

as found by Arbitrator Mackenzie, particularly since it

violated the very Article of the [CBA] that it now seeks

to use to limit the contractually agreed-upon remedy in

this matter.

Id. at 55-56.

On August 13, 2007, Verizon filed suit in district court under

section 301(a) of the Labor-Management Relations Act of 1947

(LMRA), 29 U.S.C. § 185(a), seeking partial vacatur of the

award to the extent the retroactive pay award exceeded 150
8

6

Section 301(a) of the LMRA provides that “[s]uits for violation

of contracts between an employer and a labor organization

representing employees . . . may be brought in any district court of the

United States having jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizenship of the

parties.”

days.6 The CWA counterclaimed seeking enforcement. On

August 5, 2008, the district court granted summary judgment to

Verizon, holding that “Arbitrator Gerhart exceeded his arbitral

authority under the parties’ agreement” in that “he chose to

disregard the unambiguous limitations of Article 16B.1(f)—a

limitation that he characterized as a mere

‘admonition’—because he concluded that it would be unfair to

observe that limitation in this case.” Verizon Washington, D.C.

Inc., 569 F. Supp. 2d at 127. Indeed, highlighting the

arbitrator’s “shock the sensibilities” language, the court

concluded that the arbitrator’s retroactivity determination “was

based on ‘his own brand of industrial justice.’” Id. at 128

(quoting United Steelworkers of Am. v. Enter. Wheel & Car

Corp., 363 U.S. 593, 597 (1960)). The CWA then filed a timely

notice of appeal.

II.

We have “final order” jurisdiction of this appeal under 28

U.S.C. § 1291 (“courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts of the

United States”). Despite remanding the matter to an “arbitrator

of the parties’ choosing,” the district court order is a final,

appealable order given that the remand—limited to modifying

the retroactive effect of the award “in a manner consistent with

. . . [the court’s] Opinion,” that is, retroactive to 150 days before

the date of the arbitrator’s award—is ministerial in nature. See

Verizon Washington, D.C. Inc., 569 F. Supp. 2d at 129; Pueblo

of Sandia v. Babbitt, 231 F.3d 878, 881 (D.C. Cir. 2000)
9

7

Relying on Jay’s Foods, supra, the CWA asserts that our subject

matter jurisdiction comes from the Federal Arbitration Act, 9 U.S.C.

§ 16(a)(1)(E), which provides that “[a]n appeal may be taken from . . .

an order . . . modifying, correcting, or vacating an [arbitral] award.”

Br. of Appellant at 1-2. Verizon’s suit was brought under section 301

of the LMRA, however, and, accordingly, we do not reach the

applicability vel non of the FAA.

(“[R]emand orders may be considered final where a court

remands for solely ‘ministerial’ proceedings. . . .”); cf. Jays

Foods, L.L.C. v. Chem. & Allied Prod. Workers Union, Local

20, 208 F.3d 610, 612 (7th Cir. 2000) (“‘Provided that the

matter left for determination is not merely ministerial, . . . an

order that does not determine the entire substantive relief to

which the plaintiff is entitled is not a final decision . . . .’”)

(quoting Chrysler Motors Corp. v. Int’l Union, Allied Indus.

Workers of Am., 909 F.2d 248, 249 (7th Cir. 1990)) (emphasis

added).7 Our review of the district court’s grant of summary

judgment is de novo. USPS v. Am. Postal Workers Union, 553

F.3d 686, 692 (D.C. Cir. 2009).

The CWA contendsthat under United States Supreme Court

precedent as well as our own, the district court erred in

concluding that the arbitrator’s award did not “‘draw[] its

essence’fromthe terms ofthe collective bargaining agreement.”

Howard Univ. v. Metro. Campus Police Officer’s Union, 512

F.3d 716, 720 (D.C. Cir. 2008) (quoting United Steelworkers of

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

(alteration in Howard Univ.). The arbitrator, the CWA

continues, plainly satisfied this standard when he determined

that the award should apply retroactively to December 9,

2001—the date the CWA grievance was filed—because the

arbitrator adopted the CWA’s interpretation of the 150-day

limit. Br. of Appellant at 19-23. Noting that but for Verizon’s

breach of the CBA’s notice/negotiations requirements, the Voice

Mail Clerks’ wage rate would have been determined 150 days
10

8

See also section 1(d) of Article 16B, which provides “[i]f

agreement is reached between the parties within the sixty (60) days

following the Union’s receipt of notice from [Verizon] concerning the

initial wage rates and schedules, the agreed upon wage rates and

schedules shall be retroactive to the date the change or new job was

implemented.” CBA at 25.

after the December 9, 2001 grievance was filed, the arbitrator

agreed with the CWA that Verizon should not benefit from its

breach. Id. at 20-21. According to the CWA, the

notification/negotiations requirements set forth in Article 16B

oftheCBA were conditions precedent—with which both parties

were obligated to comply—to the Voice Mail Clerks’

assumption of additional duties, making any back pay remedy

retroactive to the date they assumed the additional duties.8

Having prevented the CWA from pursuing the grievance process

in a timely manner because of its failure to notify/negotiate,

Verizon should not reap the benefit of interpreting the 150-day

retroactivity limit literally to reach back only to December 31,

2006 (150 days before the date of the arbitrator’s award). Thus,

the CWA submits, the district court erred by “substituting its

interpretation of the parties’ agreement for the Arbitrator’s.” Id.

at 27. 

 We “may vacate a labor arbitration award only if it does not

‘draw[] its essence’ from the terms of the collective bargaining

agreement.” Howard Univ., 512 F.3d at 720 (quoting Enter.

Wheel & Car Corp., 363 U.S. at 597). We therefore “‘play only

a limited role when asked to review the decision of an

arbitrator.’” Teamsters Local Union No. 61 v. UPS, Inc., 272

F.3d 600, 604 (D.C. Cir. 2001) (quoting United Paperworkers

Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987)). Indeed,

“‘[w]hile 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
11

9

Cf. Grand Rapids Die Casting Corp. v. Local Union No. 159,

United Auto., Aerospace & Agric. Implement Workers of Am., UAW,

684 F.2d 413, 415 (6th Cir. 1982) (Sixth Circuit held arbitrator

exceeded his authority by ignoring relevant contractual provisions

because he found them so “offensive” as to “shock[] [his]

conscience.”); see also Anheuser-Busch, Inc. v. Int’l Bhd. of

an arbitrator was arguably construing or applying the contract,

a court must defer to the arbitrator’s judgment.’” Howard Univ.,

512 F.3d at 720 (quoting Madison Hotel v. Hotel & Rest.

Employees, Local 25, 144 F.3d 855, 858-59 (D.C. Cir. 1998) (en

banc) (citations and internal quotation marks omitted and

emphasis added)). Moreover, an arbitrator need not be

“‘confined to the express provisions of the contract’” when

issuing his award but may also consider “the structure of the

contract as a whole.” Madison Hotel, 144 F.3d at 859 (quoting

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

363 U.S. 574, 581 (1960)). As the Supreme Court declared in

Misco, Inc.,

To resolve disputes about the application of a collectivebargaining agreement, an arbitrator must find facts and

a court may not reject those findings simply because it

disagrees with them. The same is true of the arbitrator’s

interpretation of the contract. The arbitrator may not

ignore the plain language of the contract; but the parties

having authorized the arbitrator to give meaning to the

language of the agreement, a court should not reject an

award on the ground that the arbitrator misread the

contract. . . . [A]s long as the arbitrator is even arguably

construing or applying the contract and acting within the

scope of his authority, that a court is convinced he

committed serious error does not suffice to overturn his

decision.

484 U.S. at 38.9
12

Teamsters, Local Union No. 744, 280 F.3d 1133, 1138 (7th Cir. 2002)

(“arbitrator cannot shield himself from judicial correction by merely

‘making noises of contract interpretation’” (quoting Ethyl Corp. v.

United Steelworkers of Am., 768 F.2d 180, 187 (7th Cir. 1985))

(emphasis omitted). 

10See supra note 5, showing the 150-day calculation between the

time of notice under Article 16B.1(a) and the issuance of an arbitration

award under Article 16B.1(f).

Read in its entirety, the arbitrator’s opinion and award

manifests that he accepted the CWA’s interpretation of Article

16B.1(f) in concluding that December 9, 2001, the date the

CWA filed its grievance, was the “effective date of the creation

of the Senior Voice Mail job title.” Gerhart Award at 55; see

also Br. of Appellant at 20-21. In fact, the CWA’s interpretation

drew its essence from the CBA. But regardless whether it did,

the arbitrator’s decision did. While the arbitrator recognized his

duty to “interpret the language of Article 16B.1(f) which states

that ‘in no event shall the retroactive effect exceed 150 days,’”

he then had to determine whether “as [Verizon] contends, . . .

the new wage rate for the Voice Mail Clerks must be effective

no more than 150 days prior to the date of the instant arbitrator’s

award, or, pursuant to [the CWA’s] interpretation, . . . the

revised wage rate must have effect 150 days prior to [sic] the

Union’s initial grievance, i.e., December 9, 2001.” Gerhart

Award at 38-39. In setting the December 9, 2001 date, then, the

arbitrator interpreted the collective bargaining agreement as the

CWA did—namely, that the 150-day retroactivity provision

must be read in view of Verizon’s failure to give notice under

Article 16B.1(a) of the CBA. Gerhart Award at 17-18. So read,

the 150-day retroactivity provision correlates to the period the

arbitration process is to take once proper notice is given.10

Furthermore, interpreting Article 16B.1(f) in light of the

“structure of the contract as a whole,” Madison Hotel, 144 F. 3d
13

at 859—including the CBA’s notice provision—is within the

arbitrator’s authority, see id. Therefore we cannot say that the

arbitrator was not “arguably construing or applying the contract

and acting within the scope of his authority.” Misco, 484 U.S.

at 38.

Finally, the arbitrator included a hypothetical calculation that

“[had Verizon] not violated the Agreement as found by

Arbitrator Mackenzie, and had [Verizon] properly notified [the

CWA] of the changes in the Voice Mail Clerk job in response to

the [] December 2001 grievance, and had the matter been

processed and ultimately referred to a ‘neutral third party’ as

required by Article 16B.1(e) and (f), a decision by the neutral

third party would have been rendered on or about May 9, 2002

which is 150 days after December 9, 2001.” Gerhart Award at

55. In fact, the grievance process took from late 2001 until May

30, 2007 and the second arbitrator alone took over eight months

to issue his award notwithstanding the CBA’s requirement that

any arbitration award issue “within sixty . . . days of the date

that the matter is referred for resolution.” CBA at 25. Even

were we to conclude that his calculation was a “serious error,”

Misco, 484 U.S. at 38, our conclusion would not allow us to

vacate the reward. Indeed, “[t]he ‘parties having authorized the

arbitrator to give meaning to the language of the agreement,’

courts cannot ‘reject [the] award on the ground that the arbitrator

misread the contract.’” Madison Hotel, 144 F.3d at 859

(quoting Misco, 484 U.S. at 38). The arbitrator constructed a

time line consistent with Article 16B.1(f) of the CBA.

Accordingly, we uphold the award and reverse the district

court’s grant of summary judgment to Verizon. 

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I write separately to state that for me reversal is tied to the

fact that the arbitrator adopted the CWA’s interpretation of

Article 16B.1(f), which interpretation is itself grounded in

Article 16B of the collective bargaining agreement.

Although—following the Supreme Court’s lead—we apply a

largely “hands off” standard of review to an arbitral award, that

does not mean anything goes, as even the CWA counsel

recognized:

Q: . . . . What if he had not felt confined by the 150

days—the Union had taken a different position or said

take it all the way back to the first day we got these

additional duties. Would that be enough to say he had

exceeded his authority?

Coslow: If he imposed a remedy that didn’t have

reference to the 150 days and its relationship to notice,

I think the Company’s argument would be much

stronger. But he anchored it in the notice requirement,

in the 150 days, in the Company’s breach. Those are all

appropriate considerations in interpretation.

Q: . . . Let me ask you one [other thing]. Have you

given us an example [] in this case [of] what would have

exceeded his authority?

Coslow: Well I suppose . . . I think you’ve presented one

and that is suppose he said, well I am going to,

arbitrarily, because I think it’s fair . . . I’m just [going to]

grant these employees this amount of money just

[be]cause I think they should have it. That, I think we’d

all say oh that’s over the top. But he didn’t do that . . . .

Oral Argument Recording, Verizon Washington, D.C. Inc. v.

Commc’ns Workers of Am., No. 08-7092, at 49:49-51:08 (argued

Apr. 21, 2009).