2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-28-2005

Brentwood Med Assoc v. UMWA

Precedential or Non-Precedential: Precedential

Docket No. 04-1955

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1

 Honorable Milton I. Shadur, Senior United States District

Judge for the Northern District of Illinois, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 04-1955

____________

BRENTWOOD MEDICAL ASSOCIATES

 Appellant

v.

UNITED MINE WORKERS OF AMERICA

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 03-cv-1258)

District Judge: Hon. Arthur J. Schwab

____________

Argued December 7, 2004

BEFORE: AMBRO, and VAN ANTWERPEN, Circuit

Judges and SHADUR,1Senior District Judge
2

(Filed January 28, 2005 )

James A. Prozzi, Esq. (Argued)

Jackson Lewis LLP

One PPG Place, 28th Floor

Pittsburgh, Pennsylvania 15222

Counsel for Appellant

Michael J. Healey, Esq. (Argued)

Douglas B. McKechnie, Esq.

Healey & Hornack, P.C.

1100 Liberty Avenue

The Pennsylvian, Suite C-2

Pittsburgh, Pennsylvania 15222

Counsel for Appellee

____________

OPINION

____________

VAN ANTWERPEN, Circuit Judge

The Federal Arbitration Act codifies Congress’ desire

to uphold private arbitration agreements that produce prompt

and fair dispute resolution without involving the courts. In

furtherance of this interest, a court must scrupulously honor

the bargains implicit in such agreements and interfere only

when an award is severely problematic. See, e.g., 

Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220,
3

223 (1987). This appeal asks us to determine whether or not

an arbitration award should be upheld where an arbitrator

inexplicably cites language in his decision that cannot be

found in the relevant collective bargaining agreement. 

Because we conclude that such a mistake, while glaring, does

not fatally taint the balance of the arbitrator’s decision in this

case, we affirm the decision of the District Court upholding

the award.

I. Factual Background

Brentwood Medical Associates (“BMA”) and the

United Mine Workers of America (“UMWA”) are parties to a

collective bargaining agreement that covers the terms and

conditions of employment for a unit of employees at BMA’s

facility in Brentwood, Pennsylvania. This agreement provides

a mandatory grievance and arbitration procedure for disputes

between the parties. Arbitration of grievances is conducted

by an arbitrator chosen from a panel, and that arbitrator’s

decision “shall be final and binding upon the employees, the

Union and the Employer.” Joint Appendix (“J.A.”) at 48. 

Under the agreement, an arbitrator is explicitly prevented

from “add[ing] to, subtract[ing] from, or modify[ing] in any

way any of the provisions, terms [or] conditions of [the]

Agreement.” Id. 

The grievance that gave rise to this appeal alleged that

BMA violated the collective bargaining agreement when it

refused to allow a union member to exercise her seniority

rights under Article VIII. In February, 2001, Ms. Denise

Cope (a member of UMWA) was offered the position of
 

2

 “Bumping” is the process by which an employee who had

less seniority than another is forced out so that a more senior

employee can take junior employee’s position and avoid layoff

himself. See Ostapowicz v. Johnson Bronze Co., 541 F.2d 394,

396 (3d Cir. 1976).

 

3

 The arbitrator found that Ms. Cope had greater seniority

than twenty-eight of the thirty-five employees in the bargaining

unit. J.A. at 71. 

 

4

 Article VIII (Seniority) reads, in relevant part:

Section 1. Seniority shall be defined as the years, months

and days an employee has worked with the Employer in the

bargaining unit since the employee’s last date of hire by the

Employer. . .

4

Charge Entry Associate, for which she left her position as a

Phlebotomist. On November 11, 2002, BMA announced it

would be abolishing the Charge Entry Associate classification

effective November 15, 2002. Ms. Cope requested

permission to “bump”2 outside her classification of Charge

Entry Associate and return to her position as a Phlebotomist,

thereby displacing the least senior person in that

classification. This request was refused, and BMA instead

offered Ms. Cope the position of Front Office Clerk.3 

On November 14, 2002, Ms. Cope filed a grievance

with BMA pursuant to the collective bargaining agreement,

claiming that BMA had violated Article VIII, Sections 1, 2,

and 10.4 On February 3, 2003, BMA denied this grievance. 
Section 2. The parties recognize the principal [sic] of

seniority as a factor in layoffs, recalls and certain types of

promotional opportunities provided the employees is otherwise

fully qualified. Seniority shall, however, apply only as expressly

provided for in this Agreement.

Section 10. Layoff and Recalls. In the event that the

Employer determines to reduce the work force in classification

covered by this Agreement or to abolish a classification, the

Employer will, in its sole discretion, determine which positions

are to be affected and the number of employee positions to be

reduced, including the number of full time and part time

positions which will be affected in each classification and/or

department. The reduction will be accomplished in inverse

order of seniority in the classifications affected, provided that

the employees to be retained have the skill, qualifications, ability

and physical fitness to perform all of the work remaining in that

classification without training, and will assume the remaining

schedule. The Employer will send the Union a list of employees

laid off within twenty-four (24) hours of the layoff. The

Employer may exempt employees with special skills or abilities

from any reduction in force or layoff.

(emphasis added).

5

BMA and UMWA then proceeded to binding arbitration

pursuant to Article XIV of the collective bargaining

agreement. Arbitrator John M. Felice was selected to conduct

the arbitration, and on August 6, 2003, he issued a decision

sustaining the grievance and ordering BMA to permit Ms.
6

Cope to exercise her seniority rights and bump the least senior

Phlebotomist. J.A. at 68-75. In that decision, the arbitrator

asked rhetorically why, if bumping was not permitted under

the collective bargaining agreement as BMA contended, was

the following language governing bumping present in Article

VIII, Section 10: 

“. . . employees who exercise seniority rights and bump must

have the skill, qualifications, ability and physical fitness to

perform all of the work remaining in that classification. . .”

 J.A. at 73-4. This language does not exist in either Article

VIII, Section 10, or anywhere else in the collective bargaining

agreement.

BMA filed a complaint with the United States District

Court for the Western District of Pennsylvania pursuant to

Section 301 of the Labor Management Relations Act of 1947,

as amended, 29 U.S.C. § 185 et seq, seeking to vacate the

award. The parties filed cross-motions for summary

judgment, and the District Court granted summary judgment

in favor of UMWA on March 12, 2004. Adopting the

appropriate deferential standard of review, the District Court

concluded that the parties had agreed that (1) an arbitration

award would be final and binding, and (2) the arbitrator’s

decision reached a rational result consistent with the terms of

the agreement. J.A. at 06-7. 

II. Jurisdiction and Standard of Review

BMA filed a timely Notice of Appeal on April 5, 2004. 
7

We have jurisdiction to review this final district court order

pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a district court’s decision resolving cross motions for

summary judgment. Teamsters Local 312 v. Matlack, Inc.,

118 F.3d 985, 994 (3d Cir. 1997), (quoting United Parcel

Service, Inc. v. Int’l Bhd. of Teamsters Local No. 430, 55 F.3d

138, 140 (3d Cir. 1995)). 

A collective bargaining agreement represents a

contractual accord reached between an employer and its

employees. If such a contract includes an arbitration clause, it

is assumed that the parties bargained for a grievance

resolution procedure in which an arbitrator would interpret the

agreement. It is thus not the role of a court to correct factual

or legal errors made by an arbitrator. Major League Umpires

Ass’n v. American League of Professional Baseball Clubs,

357 F.3d 272, 279 (3d Cir. 2004). A district court may

determine only whether or not an arbitrator’s award “draws its

essence” from the parties’ collective bargaining agreement,

United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc.,

484 U.S. 29, 36 (1987), and we apply this same standard in

reviewing the arbitration award. Pennsylvania Power Co. v.

Local Union No. 272 of the Int’l Bhd. of Elec. Workers, AFLCIO, 276 F.3d 174, 178 (3d Cir. 2001). Once a court is

satisfied that an arbitrator’s award draws its essence from a

collective bargaining agreement, it is without jurisdiction to

consider the award further.

An award draws its essence from a collective

bargaining agreement if its interpretation can in any rational

way be derived from the agreement, viewed in light of its
8

language, its context, and any other indicia of the parties’

intention. United Transp. Union Local 1589 v. Suburban

Transit Corp., 51 F.3d 376, 379-80 (3d Cir. 1995). “As a

general rule, we must enforce an arbitration award if it was

based on an arguable interpretation and/or application of the

collective bargaining agreement, and may only vacate it if

there is no support in the record for its determination or if it

reflects manifest disregard of the agreement, totally

unsupported by principles of contract construction.” Exxon

Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357, 360

(3d Cir. 1993) (internal quotation marks omitted). Therefore,

we will not disturb an arbitration award “even if we find the

basis for it to be ambiguous or disagree[] with [the

arbitrator’s] conclusions under the law.” Citgo Asphalt

Refining Co. v. Paper, Allied-Indus., Chem. & Energy

Workers Int’l Union Local No. 2-991, 385 F.3d 809, 816 (3d

Cir. 2004), (quoting Stroehmann Bakeries, Inc. v. Local 776,

Int’l Bhd. of Teamsters, 969 F.2d 1436, 1441 (3d Cir.1992)).

III. Discussion

There is a strong presumption under the Federal

Arbitration Act, 9 U.S.C. § 1 et seq., in favor of enforcing

arbitration awards. Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24-25 (1983). As such, an award

is presumed valid unless it is affirmatively shown to be

otherwise, and the validity of an award is subject to attack
 

5

 9 U.S.C. § 10 states, in relevant part: 

(a) In any of the following cases the United States court in and

for the district wherein the award was made may make an order

vacating the award upon the application of any party to the

arbitration--

(1) where the award was procured by corruption, fraud,

or undue means;

(2) where there was evident partiality or corruption in the

arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in

refusing to postpone the hearing, upon sufficient cause

shown, or in refusing to hear evidence pertinent and

material to the controversy; or of any other misbehavior

by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so

imperfectly executed them that a mutual, final, and

definite award upon the subject matter submitted was not

made.

9

only on those grounds listed in 9 U.S.C. § 10,5 or if

enforcement of the award is contrary to public policy. Exxon

Shipping Co., 993 F.2d at 360, (quoting W.R. Grace & Co. v.

Local Union 759, Int’l Union of Rubber Workers, 461 U.S.

757, 766 (1983)).

BMA contends that the arbitrator exceeded his

authority when he added language to the collective bargaining

agreement supporting his conclusion that Ms. Cope could

bump a less senior employee in a different classification,
10

which signals a violation of 9 U.S.C. § 10(a)(4). If this

alleged overstep by the arbitrator is the only leg that supports

his decision, it is within our discretion to vacate the award. 

Therefore, the narrow issue before us is whether the

arbitrator’s conclusion is supported, in any way, by a rational

interpretation of the collective bargaining agreement. We

reiterate that it is our duty to resist the urge to conduct de

novo review of the award on the merits. See United

Paperworkers Union, 484 U.S. at 36 (we “are not authorized

to reconsider the merits of an award even though the parties

may allege that the award rests on errors of fact or on

misinterpretation of the contract.”). Rather, we ask merely

whether the parties to the collective bargaining agreement got

what they bargained for, namely an arbitrator who would first

provide an interpretation of the contract that was rationally

based on the language of the agreement, and second would

produce a rational award. BMA contends that the arbitrator’s

reference to the language not found in the collective

bargaining agreement fatally taints the award, because this

reference is essential to the arbitrator’s ultimate conclusion

and is inseparable from the remainder of the award. As such,

our focus must be on whether the arbitrator’s discussion can

still support the award if we excise the anomalous language. 

We believe that it does provide such support.

The arbitrator first stated that he was confronted with

contrary interpretations of Article VIII, Section 10 offered by

BMA and UMWA. As framed by the parties, the issue before

the arbitrator was essentially whether use of the plural term

“classifications” in Article VIII, Section 10 enables

employees affected by layoff to exercise their seniority rights
 

6

 We cannot and do not pass judgment on the wisdom of the

arbitrator’s conclusion. All we are empowered to determine

here is whether or not his award draws its essence from the

collective bargaining agreement.

11

by bumping into another classification. After taking notice of

the fact that arbitrators generally hold seniority provisions to

be at the heart of any collective bargaining agreement, he set

about reviewing the agreement’s various provisions. The

arbitrator pronounced that a “conjunctive interpretation of

Article VIII of the [collective bargaining agreement] leads to

the inescapable conclusion that the parties have consistently

recognized seniority preference. . .” J.A. at 73. This is born

out by a review of the collective bargaining agreement. 

Article VIII, Section 1, supra., expressly identifies seniority

in terms of the entire bargaining unit. Section 2 of that

Article goes on to say that seniority rights apply only as

expressly provided for in the agreement. This is a clear basis

upon which the arbitrator could have concluded that seniority

preference existed unit-wide.6 This alone provides ample

basis to uphold the award.

In additional support for his conclusion, the arbitrator

cited several provisions of the agreement:

For example, Section 1 defines seniority as “bargaining unitwide” and not within classification. Section 2 provides that

the principle of seniority is a factor in layoffs, recalls and

certain types of promotional opportunities provided the

employee is fully qualified. Section 5 specifies that in filling
12

vacancies when the qualifications of two (2) or more

applicants are relatively equal, preference will be based on

seniority. Section 11, specifies that when the Employer

decides to affect a recall from layoff, it will “consider

employees with recall rights first within the classification

from which they were laid off, then by seniority, the most

senior first, based upon the position preferences on the

designated forms.” This proviso obviously entitles senior

employees to be recalled in reverse order of layoff to a

position other than to the position from which they were laid

off, provided they are qualified.

Id. Furthermore, he explained: 

the language “in inverse order of seniority in the classification

affected” in Article VIII, Section 10 of the [collective

bargaining agreement] cannot be interpreted to prohibit senior

employees affected by a layoff from exercising their

“bargaining unit-wide” seniority rights and bump less senior

employees outside of their classification, provided they are

qualified. 

J.A. at 74. The arbitrator concluded his review by noting that no provision

in Article VIII of the agreement would prevent bumping bargaining unitwide. J.A. at 75.

After reviewing the totality of the arbitrator’s decision, we are

confident that his award does not rest solely upon the aberrant language

added by the arbitrator. While it is true that the clearest support for the
 

7

 Our learned colleague reiterates in his dissent that it is

undisputed that the arbitrator modified agreement language in

violation of Article XIV, Section 1, and that the arbitrator

therefore exceeded his contractual authority. Had this been the

only basis for his conclusion, we would agree that vacatur is

appropriate. However, even if we were to kick out the “bum

leg” of the arbitrator’s award, there are still many others upon

which this award can stand. We do not agree with the dissent’s

assertion that, regardless of what other justifications there are

for his decision, the arbitrator’s single error alone allows us to

void the award in toto.

13

arbitrator’s conclusion comes from the language he interpolated,7 there is

sufficient substance in the remainder of the discussion to pass the minimum

rationality threshold. Faced with what he perceived as an incongruity

between BMA’s position and the bargaining unit-wide seniority rights of

employees, the arbitrator attempted to construe together, and then give

effect to, all provisions of the agreement. While BMA may take issue with

his contractual interpretation, this is not sufficient to justify vacatur of the

award by this Court. See Major League Baseball Players Ass’n v. Garvey,

532 U.S. 504, 509 (2001) (per curiam) (“if an arbitrator is even arguably

construing or applying the contract and acting within the scope of his

authority, the fact that a court is convinced he committed serious error does

not suffice to overturn his decision.”) (internal quotations omitted). 

BMA’s entire argument rests on the arbitrator’s inexplicable

quotation of language that was not present in the agreement. Certainly, this

was a mistake. Moreover, this mistake clearly violates Article XIV, Section

1’s prohibition against the arbitrator adding to, subtracting from, or

modifying the agreement. Nonetheless, this error is insufficient to warrant
14

vacation of the award. “Full-blown judicial review” of the arbitrator’s

decision would annul the bargain between BMA and UMWA for an

arbitrator’s construction of their agreement and replace it with a judicial

interpretation that was not bargained for. Stroehmann Bakeries, Inc., 969

F.2d at 1441. Only where there is manifest disregard for the agreement can

we override an arbitrator. Because the remainder of the justification for the

award offered by the arbitrator was capable of separation from the aberrant

language, his decision reflects an interpretation of the contract that is at

least minimally rooted in the collective bargaining agreement, and not his

“own brand of industrial justice.” United Paperworkers Intern. Union, 484

U.S. at 36. Consequently, the arbitrator’s error was harmless, since he

would have arrived at the conclusion he reached here, even absent the

discussion of the aberrant language. As such, our inquiry into the award

has reached its jurisdictional limit, and we must uphold it.

IV. Conclusion

For the foregoing reasons, we affirm the decision of the District

Court.
15

AMBRO, Circuit Judge, Dissenting

I believe this case presents the rare situation in which it is

appropriate for our Court to vacate an arbitration award. Therefore, I

respectfully dissent.

Although our review of arbitration awards is—as stated by my

colleagues in the majority—highly deferential, courts are nonetheless

“neither entitled nor encouraged to simply ‘rubber stamp’ the interpretations

and decisions of arbitrators.” Matteson v. Ryder Sys. Inc., 99 F.3d 108, 113

(3d Cir. 1996). The federal courts retain a significant role in the review of

labor arbitration awards and may vacate awards under certain

circumstances. Id. at 113–14. One such circumstance occurs when the

arbitrator shows “manifest disregard” for the terms of the collective

bargaining agreement (“CBA” or “Agreement”) at issue. See, e.g., Major

League Umpires Ass’n v. Am. League of Prof’l Baseball Clubs, 357 F.3d

272, 280 (3d Cir. 2004), cert. denied, ___ S.Ct. ___, 2005 WL 45841

(“[A]n award may be vacated if the arbitrator demonstrates manifest

disregard for the CBA.”); Newark Morning Ledger Co. v. Newark

Typographical Union Local 103, 797 F.2d 162, 165 (3d Cir. 1986) (“[I]n

that rarest case of manifest disregard of the [collective bargaining]

agreement, the [court] must draw the line.”) (internal quotation omitted). 

An arbitrator derives her/his authority from the terms of the CBA

and the scope of the issues submitted by the parties. Major League
 

8

In fact, the Union had unsuccessfully attempted to include a

bumping provision in the CBA when negotiating its terms.

16

Umpires Ass’n, 357 F.3d at 279. In this case, the CBA provides that an

arbitrator’s decision is final and binding on the parties. CBA Art. XIV § 1

(Step 4). Importantly, the CBA also explicitly states that “[t]he arbitrator

shall not add to, subtract from, or modify in any way any of the provisions,

terms o[r] conditions of this Agreement.” Id. (emphasis added). Despite

this leave-no-doubt language, it is undisputed that, in rendering an

arbitration award in favor of the Union, the arbitrator modified the language

in the CBA to include a provision allowing for “bumping” where no such

provision exists in the actual text of the CBA.8 In doing so, the arbitrator

violated the provision of the CBA that prohibited him from modifying its

terms. He thus exceeded the scope of his contractually delegated authority. 

Cf. Pennsylvania Power Co. v. Local Union No. 272, 276 F.3d 174, 179 (3d

Cir. 2001) (vacating an arbitration award because the arbitrator exceeded

his powers under the CBA by altering the CBA “in direct violation of [the

CBA’s] provision that he had no power to do so.”); see also 9 U.S.C.

§ 10(a)(4) (providing that a federal court may vacate an arbitration award

“where the arbitrators exceeded their powers, or so imperfectly executed

them that a mutual, final, and definite award upon the subject matter

submitted was not made.”). Because, “[s]imply stated, an arbitrator may not

venture beyond the bounds of his or her authority,” Major League Umpires

Ass’n, 357 F.2d at 279 (internal quotation omitted), I would vacate the

arbitration award on this ground alone.

My colleagues in the majority recognize that the arbitrator’s

“inexplicable quotation” of language not in the CBA was a clear violation
17

 of Article IV § 1 of that Agreement. They nevertheless conclude that the

arbitrator’s award cannot be vacated because it was rationally based on the

language of the CBA. I agree, of course, that an arbitration award must be

upheld if it is in “any rational way” related to the language of the

agreement. See, e.g., id. at 280. But I do not agree that this standard has

been met here. 

The arbitrator believed there was an incongruity between Brentwood

Medical Associates’ (“BMA”) position that senior employees had no right

to bump less senior employees in other work classifications and the

bargaining-unit seniority rights provided for in the CBA. J.A. at 74. In

resolving this purported incongruity and finding that the employee here

could exercise her seniority rights and bump an employee in another

classification, the arbitrator twice cited and discussed the language

regarding the right to bump that he wrote into the very section of the CBA

under review. Id. at 73–74. A comparison of the actual language of the

CBA with the language used by the arbitrator (shown in bold) highlights the

differences between the two. 

Text Used in

Arbitrator’s Decision

Page

Actual Text of

Collective Bargaining

Agreement 

Section
 

9The arbitrator wrote: “[I]f, as [BMA] asserts, reductions

apply only ‘. . . in the inverse order of seniority in the

classifications affected. . .’”, why was the “following language

[inserted] to govern bumping, to wit: ‘. . . employees who

exercise seniority rights and bump must have the skill,

qualifications, ability and physical fitness to perform all of the

18

“ . ..employee s w h o

exercise seniority rights

and bump must have the

skill, qualifications,

ability and physical

fitness to perform all of

the work remaining in

that classifica tion...”

J.A.

73,74

“The reduction will be

accomplished in inverse

order of seniority in the

classifications affected,

provided that t he

emp loyees to b e

retained must have the

skill, qualifications,

ability and physical

fitness to perform all of

the work remaining in

tha t classific atio n

without training, and

wil l a ssum e th e

remaining schedule.”

Art. VIII,

§ 10

This added language informed the arbitrator’s belief (indeed it tipped

the balance) that the position BMA took in the arbitration was inconsistent

with the terms of the CBA, causing the arbitrator to question why language

governing bumping was included in the agreement if, as BMA asserted, an

employee whose classification was eliminated was not allowed to bump an

employee in another classification.9 There was but one problem—the
work remaining in that classification . . . [?]” J.A. at 74.

19

language with which the arbitrator believed BMA’s position was

inconsistent was not part of the CBA. 

I do not agree with my colleagues in the majority that the arbitrator’s

reference, at the end of his decision, to the “‘plant-wide seniority’ system

. . . ingrained in Article VIII, Section 1 of the CBA”, J.A. at 75, is sufficient

to support a conclusion that the arbitrator’s award draws its essence from

the CBA notwithstanding his prior modification of the language of the

agreement. The CBA defines seniority as bargaining unit-wide only

generically as follows: “Seniority shall be defined as the years, months and

days an employee has worked with the Employer in the bargaining unit

since the employee’s last date of hire by the Employer.” CBA Art. VIII § 2

(emphasis added). 

The underlying dispute in this case concerned whether an employee

whose job classification had been abolished, and who was thus facing being

laid off, could bump a less senior employee in another classification. The

CBA contains a specific provision for “Layoff and Recalls,” see CBA Art.

VIII § 10, and, as discussed above, it is that section that the arbitrator

misquoted. The arbitrator’s award should not be upheld on the basis of the

general language regarding bargaining-unit seniority in Article VIII, Section

1, when the arbitrator first rewrote the more specific language regarding

layoffs that he should have been applying to resolve this dispute. To

forgive the arbitrator’s Humpty Dumpty approach to the specific provision

in play by referring to a general statement on seniority is akin to decreeing

that the general call for mercy expiates the specific commandment not to

kill.
20

Even assuming that the arbitrator’s added language could be

separated from the rest of his decision, the award should still be vacated. 

When faced with the supposed disconnect between BMA’s position that

bumping outside of one’s own classification should not be allowed and the

bargaining-unit seniority rights outlined in the CBA, the arbitrator came

down in favor of allowing bumping across classifications. He noted that

there was no provision in Article VIII of the CBA, the section dealing with

seniority, that would prohibit bumping. He also found that bumping across

classifications was “consistent with arbitral authority which holds that, in

the absence of any contract provision, it is almost universally recognized by

arbitrators that senior employees who are governed by a ‘plant-wide

seniority’ system, such as is imagined in Article VIII, Section 1 of the

CBA[,] have the right to bump junior employees from their jobs in order to

avoid their own layoff, provided they can perform the work of the junior

employees.” Id. at 75 (internal quotation omitted). 

Far from there being an “absence of any contract provision,”

however, the CBA states that “[s]eniority shall . . . apply only as expressly

provided for in this Agreement.” CBA Art. VIII § 2 (emphasis added). In

implying a right to bump because no contract provision prohibited bumping

and because this result was consistent with general arbitration principles,

the arbitrator again exceeded the scope of his powers by ignoring the

CBA’s ban on applying seniority “only as expressly provided” in the

Agreement itself. Ignoring plain language—least of all language that set

the arbitrator’s authority—is a no-no of first rank. See United

Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987);

Pennsylvania Power Co., 276 F.3d at 178. 
In sum, the arbitrator in this case directly contradicted the plain

language of the CBA and thus exceeded the scope of his powers by: (1)

altering the language of the Agreement to include an express right to bump

across classifications in defiance of the CBA provision prohibiting any

modification of its language; and (2) reading into the CBA a right to bump

because no provision of the CBA prohibited it in defiance of the CBA

provision stating that seniority rights may only be applied as the CBA itself

provides. To ignore the plain language of the CBA, and to rely on language

not contained in it in reaching his decision, are the opposite of issuing an

award that drew its essence from the CBA.

Our deferential standard of review in labor arbitration cases may

mean that we uphold arbitration awards but for snow in August. But when

an arbitrator rewrites a collective bargaining agreement as he did here

(making manifest an utter disregard for the CBA’s actual words), or finds a

meaning to exist because it is not expressed, and we uphold either sleightof-hand, “deference” becomes a “rubber stamp.” If this arbitrator’s award

evades vacating, what award does not? I respectfully dissent.