1 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12

- 1727

_____________

AKERS NATIONAL ROLL COMPANY

v.

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY,

ALLIED INDUSTRIAL AND SERV ICE WORKERS INTERNATIONAL UNION, AND IT S LOCAL UNION

1138

- 4 OFFICE AND TECHNICAL,

Appellant

__________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 2

- 10

- cv

- 01079)

District J udge: Hon. David S. C ercone

__________

Argued February 13, 20132 Before: HARDIMAN and ALDISERT, Circuit Judges , and

STARK,  District Judge

.

(Filed : April 4, 2013 )

Daniel M. Kovalik

Mariana L. Padias (Argued)

United Steelworkers of America

Room 807 Five Gateway Center

Pittsb urgh, PA 15222

Counsel for Appellant

John B. Bechtol

Kenneth S. Kornacki (Argued)

Metz Lewis Brodman Must O‘Keefe, LLC

535 Smithfield Street

Suite 800 Pittsburgh, PA 15222

Counsel for Appellee

__________

OPINION OF THE COURT

__________

ALDISERT, Circui t Judge

.

The Union representing certain employees at Akers National Roll Company ( the ―Company‖) appeals from a

 Honorable Leonard P. Stark, Judge of the United States District Court for the District of Delaware, sitting by designation.3 jud gment entered on March 13, 2012 by the United States District Court for the Western District of Pennsylvania . The

District Court vacated an award issued by Arbitrator Richar d D. Sambuco (the ―Arbitrator‖), granted the Compan y‘s motion for summary judgment

, and denied the Union‘s motion for summary judgment.

In 2009, t he Union submitted three grievances on

behalf of Co mpany employee and Union member Nelson Lubik, alleging that the Company violated a ―past practice‖ by failing to schedule Lubik, a maintenance clerk, for Saturday overtime when the maintenance department was

scheduled to work. After the Arbitrator sustained the three grievances a nd ordered the Company to pay Lubik back wages for the missed overtime, the Company sued to vacate

the Arbitrator‘s award. The District Court vacated the award

because it concluded that the award did not ―draw its essence‖ from the Collective Bargaining Ag reement ( the

―CBA‖ or ―Agreement‖ ); it reached this conclusion after determining that the plain language of the CBA

― unambiguously ‖ gave the Company the exclusive right to schedule its workforce. Because we disagree with the District

Court‘s reasoning and its conclusion, we will revers e the District Court‘s judgment and will order enforcement of the

Arbitrator‘s award.

I.

A.

The Company runs a manufacturing plant in Avonmore, Pennsylvania, and the Union is the exclusive

collective

- bargaining representa tive for clerical and technical4 employees at the plant. From September 1, 2008 through February 29, 2012, the Company and the Union were pa rties

to a CBA. The CBA included a multi

- step grievance resolution procedure to be used when the Union and the Compan y disagree d over ―interpretation or application of, or compliance with the provisions‖ of the CBA. A pp. 31. Under the CBA, unresolved grievances were submitted to

arbitration.

In February and March of 2009, the Union submitted

three grievance s on behalf of Lubik, alleging that the Company violated the CBA by directing Lubik not to work Saturday shifts on February 14, February 28, and March 7, when employees of the maintenance department were

scheduled to work. In the first grievance, t he Union stated

tha t the nature of the grievance was ―Past Practice, the maintenance clerk has always worked when the Maintenance Department works whether full or partial crew.‖ Id. at 65. Because Lubik would have been eligible for overtime pay if he had worked on a Saturday alongside maintenance department employees, the Union alleged that the Company should be liable to pay Lubik at the overtime rate for the

hours he wa s not scheduled to work. Id

.

Per the grievance resolution procedure, the Company

submitted answers to th e Union‘s allegations . Regarding the first grievance, the Company asserted that there was no violation of the CBA because the ―Company has the right to schedule under Section 3 . . . of the Labor Agreement,‖ because the CBA ―does not recognize the existenc e of  ̳past practice‘ in an [ y ] form,‖ and because ― [ t ] he notion of a  ̳past practice‘ cannot undo or supersede clear contract languag e[; ] Section 3 is very clear.‖ Id. at 66. The Company additionally5 asserted that ―Section 2

– Scope of the Agreement [] state s that any agreements must be put in writing and signed by the

union desi gnate and the company. ‖ Id.

The Company submitted answers to the second and

third grievances as well, and its final answer stated that its position had not changed since its answer to the first grievance, ―cit [ing ] Section 2, Section 3 and all other relevant

sections in support of its scheduling.‖ Id. at 70. The final

answer also referred to a ―Section 9 D (C) page 20‖ in

response to Lubik‘s grievance. The CBA d oes not contain a

Sect ion 9(D)(C), though, and page 20 contain s portions of Section 8, ―Rates of Pay,‖ which does not appear to be relevant to the instant dispute.

The Company and the Union ultimately submitted the three grievances to arbitration per the CBA.

B.

Because prov isions of the CBA command our attention in deciding this case, we set forth the following relevant

sections t hereof.

Section 3 of the CBA, entitled ―Management‖ and referred to as the ―management rights clause

, ‖ reads as

follows:

1. The Company retains the exclusive rights to manage the business and plant and to direct the working forces. The Company, in the exercise of its rights, shall observe the provisions of this A greement.6 2. The rights to manage the business and plant and to direct the working forces includes the right to hire, suspend or discharge for proper cause, or transfer, and the right to relieve employees from duty because of lack of work or for other legitimate reasons.

Id. at 29.

S ection 9 of the CBA is entitled ―Hours of Work. ‖

T wo provisions of that Section are relevant to our analysis, Sections 9(A)(1) and 9(B)(1) , which read as follows :

A. Normal Hours of Work

1. The normal workweek shall be 40 hours per week, scheduled on five successive days, from Monday through Friday, inclu sive.

B. Scheduling 1. If an employee is requested to report to work outside his regularly scheduled

workweek and whether or not work is available he shall receive a minimum of 4 hours reporting pay at the employee‘s applicable rate of pay.

Id. at 38.

Section 2 is entitled ―Scope of the Agreement.‖ Within Section 2 is a paragraph referred to by the parties as a ―zipper clause,‖ which reads as follows:7 Agr e ements for the plant will only be recognized if they are in writing and signed by the designate o f the International, and the Negotiating Committee; provided, however, that any such agreements may be terminated by either party upon 30 days written notice to the other party.

Id. at 28

.

C

.

On June 17, 2010, the Union and the Company participated in a hearing before the Arbitrator, and they

― stipulated that the case being heard included three (3) grievances, all involving the same issue.‖ Id. at 70. The Union and the Company presented their contentions and supporting evidence to th e Arbitrator. The A rbitrator‘s a ward contains a section that summarizes the positions of the parties

as present ed at the arbitration hearing. Id. at 86

- 89. The thrust of the Union‘s argument was that a past practice had been established, and that a written, signed agreement was not required for its establishment. Id. at 87. The Union presented evidence in support of its argument, including the testimony of Lubik as well as exhibits detailing the maintenance department‘s work schedule from 2008

- 2010, along with payroll records for Lubik. Id. at 72

- 83 . From this evidence, it was apparent that Lubik had worked weekend shifts along with the maintenance department employees even on weekends when he had not been formally scheduled to work,

and that he had been paid overtime for that work. This practice concluded in 2009, leading to the Union‘s first grievance.8 The Company argued that the re was no past practice in

its A greement with the Union, because its zipper clause, located at Section 2 of the CBA, precluded a finding of past

pra ctice. It argued also that the CBA‘s Section 3 m anagement rights clause included the right to schedule, that any modifying agreement would have to be in writing, and that the past practice agreement had never been reduced to writing.

In a decision that is now the subject of some dispute between the parties, the Arbitrator determined that he had to decide the following issue:

Did the P arties to the Agreement as alleged in

Grievance No. 2

- 2009 establish, by their actions in the year 2008, an unwritten pas t practice and did the Company violate this past practice? If the answer is yes, what is the remedy?

Id. at 84.

D.

On July 17, 2010, the Arbitrator issued an award sustaining Lubik‘s grievances and awarding him $5,477.08 in back wages, as well as the amounts Lubik would have earned in profit sharing in 2009 and 2010 had he worked on weekends that the maintenance department was scheduled to work. The Arbitrator cited several provisions of the CBA, including Section 3‘s management rights clause. He did n ot cite to or refer to Section 9, the ―Hours of Work‖ section. He focused his analysis and discussion on whether a past practice9 had in fact been established, and whether Section 2‘s zipper clause prohibited a finding of past practice.

The Arbitrator co ncluded that the zipper clause failed to prohibit a finding of past practice, because it ―does not acknowledge that the written contract constitutes the parties‘ entire agreement, is not explicit with regard to a waiver of the right to bargain about other conditions, nor is it a specific affirmation that management rights are no t limited by prior practices.‖ Id. at 91. The Arbitrator determined also that the language of the zipper clause was ambiguous, because its language appeared to indicate that an agree ment that would satisfy the zipper clause would only require signature by the Union and not by the Company. Id. at 100. In addition, he described the characteristics of a binding past practice, including such factors as clarity, consistency, longevity,

rep etition, acceptability, underlying c ircumstances, and mutuality. Id. at 94

- 95.

The Arbitrator concluded that a binding past practice had been established when, in 2008, Lubik was permitted to work on weekends when his name did not appear in the work

sche dule. The Arbitrator noted that this practice occurred under two different maintenance managers, prior to and after adoption of the 2008

- 2012 CBA. Id. at 96. He noted also that the mutuality requirement was met because ―the parties, by

virtue of their cons tant response to a recurring set of circumstances, resulted in a mutually accepted way of doing things that culminated into a past practice that carried over into the present Collective Bargaining Agreement . . . .‖ Id. at
102. The Arbitrator concluded tha t the Union and the Company did establish a past practice that the Company violated when Lubik was not allowed to work along with the10 maintenance department employees on weekends

. Accordingly, the Arbitrator sustained Lubik‘s grievances and

awarded him bac k wages and profit sharing.

E.

The Company then filed suit to vacate the Arbitrator‘s award, alleging that the award ―ignores [the Company‘s] exclusive and express right to direct the workforce and to

schedule overtime and therefore fails to dra w its es sence from the [CBA].‖ Id. at 23. In addition to citing Section 3‘s management rights clause, the Company cited to Section 9,

―Hours of Work.‖ Id. at 22. The Company alleged also that the Arbitrator exceeded his jurisdiction under the CBA by ignoring the C BA‘s clear provisions regarding the Company‘s right to direct the workforce and schedule overtime, and that the Arbitrator exceeded his authority by issuing an award that

i mpermissibly modifies the CBA. Id. at 24.

The Company and the Union filed cross

- m otions for summary judgment. The District Court granted the Company‘s motion, denied the Union‘s motion, and vacated the award. The Union timely appealed.

II

.

The District Court had jurisdiction under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185

. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court‘s decision to vacate the

arbitration award. Pa. Power Co. v. Local Union No. 272 of the Int‘l Bhd. of Elec. Workers, AFL

- CIO , 276 F.3d 174, 17 8 (3d Cir. 2001). ―[W]e apply the same standard the district11 court should have applied in reviewing the arbitration award.‖ Exxon Shipping Co. v. Exxon Seamen‘s Union , 73 F.3d 1287, 1291 (3d Cir. 1996) (citation omitted). Our review is quite narrow. If an ―arbitrator‘s award  ̳draws its essence from the collective bargaining agreement,‘ and is not merely  ̳his own brand of industrial justice,‘ the award is legitimate.‖ United Paperworkers Int‘l Union, AFL

- CIO v. Misco, Inc.

, 484 U.S. 29, 36 (1987) (quoting Un ited Steelworkers o f Am.

v. Enter. Wheel & Car Corp. , 363 U.S. 593, 596 (1960) ) . As this Court stated 44 years ago:

[A] labor arbitrator‘s award does draw its

essence from the collective bargaining
agreement if the interpretation can in any rational way b e derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties ‘ intention

.

Ludwig Honold Mfg. Co. v. Fletcher , 405 F.2d 1123, 1128 (3d Cir. 1969) (internal quotation marks omitted)

.

In deed, a reviewin g court may disturb an arbitrator‘ s award ― only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop. ‖ Id. ; see also Brentwood

Med. Assocs. v. United Mine Workers of Am

. , 3 96 F.3d 237, 241 (3d Cir. 2005) ; Major League Umpires Ass‘ n v. Am. League of Prof‘l Baseball Clubs , 357 F.3d 272, 280 (3d Cir. 2004); Exx on Shipping Co. v. Exxon Seame n‘ s Union

, 993 F.2d 357, 360 (3d Cir. 1993); Virgin Islands Nursing Ass‘n‘ s Bargaining Un it v. Schneider

, 668 F.2d 221, 223 (3d Cir. 1981). The Supreme Court has phrased the same idea in this

fashion: ― if an arbitrator is even arguably construing or12 applying the contract and acting wit hin the scope of his authority, the fact that a court is co nvinced he committed
serious error does not suffice to overturn his decision.‖ Major League Baseball Players Ass‘n v. Garvey

, 532 U.S. 504, 509 (2001) (per curiam) (internal quotation marks and citation

omitted ) . The Garvey Court stated that arbitration aw ards may be unenforceable ―only when the arbitrator strays 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 ).

I I I

.

The overarching question presented to us here is

whether the Arbitrator‘s a ward draws its essence from the

CBA

. The Union in s ists t hat it does; the Company argues, in total agreement with the District Court, that it does not.

T he District Court concluded that the Arbitrator‘s

a ward did not draw its essence from the CBA, after determining that the plain language of CBA Sections 3 and 9

gave the Company the exclusive right to direct and schedule

its workf orce. In addition, the Court concluded that because
the Arbitrator‘s award di d not draw its essence from the CBA, the Arbitrator exceeded his authority when he relied on the alleged past practice of the Company.

We regret we must disagree with both of the District

Court ‘s conclusions. When parties knowingly and voluntarily bargai n for arbitration to resolve disputes, they receive the benefits of fast results and reduced dispute

- resolution

expenses. See Major League Umpires Ass‘n , 357 F.3d at 289

. These benefits, however, do not come without risk, and ―the13 possibility of receiving inconsistent or incorrect rulings without meaningful appellate review of the merits is one of the risks such parties must accept when they choose arbitration over litigation.‖ Id. In short, ―[i] t is the arbitrator‘ s construction which was bargained fo r; an d so far as the

arbitrator‘ s decision concerns construction of the contract, the courts have no business overruling him because their interpretation is different from his. ‖ Enter. Wheel

, 363 U.S. at
599.

The District Court here erred in the same manner a s the trial judge did in News America Publications , Inc. v. Newark Typographical Union

, Local 103 , 918 F.2d 21 ( 3d

Cir. 1990). Speaking for the Court was Chief Judge Higginbotham:

As Judge Aldisert has observed, federal labor

law elevates labor a rbitrat or s to ―an exalted

status.‖ Ludwig Honold Mfg. Co. v. Fletcher

, 405 F.2d 1123, 1126 (3d Cir. 1969)

. . . . A court may not overrule an a rbitrator simply because it disagrees with the a rbitrator ‘ s construction of the contract,

. . . or because it believes i ts interpretation of the contract is better than that

of the a rbitrator

. See W.R. Grace & Co. v. Local 759, International Union of the United

Rubber Workers

, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983).

News Am. Publ‘ns , 918 F.2d at 24.14 Here , the Company accepted the risk of arbitration, and now seeks to avoid its result; we will not permit it to do

so.

IV

.

The Company contends that Sections 3 and 9 of the CBA unambiguously vest ed it with the exclusive right to schedule its employees. Citing P ennsylvania Powe r , it argues that the Arbitrator manifestly disregarded the CBA and ignored the plain language of S ections 3 and 9, such that the

a ward failed to draw its essence from the CBA. See Pa.

Power Co. , 276 F.3d at 178. The District Court agreed with the Company‘s contentions.

This raises a critical threshol d issue for our

consideration: w as the CBA so unambiguous as to the Company‘s right to schedule its workfo rce such that the
Arbitrator‘s a ward, in which he inquired into past practice

, manifestly disregarded the CBA? This Court has stated that ―extrinsic evidence of  ̳past practice‘ could be admitted, if at all, only to resolve an ambiguity in the CBA.‖ Quick v.

N.L.R.B. , 245 F.3d 231, 247

- 248 (3d Cir. 2001)

. In support of

this stateme nt, Quick cited to U.A.W. Local 1697 v. Skinner Engine Co.

, 188 F.3d 130 (3d Cir. 1999)

, which, quoting a n opinion of the U.S. Court of Appeals for the Seventh Circuit

, stated :

Although extrinsic evidence is admissible to

show that a written contract whic h looks clear is actually ambiguous, perhaps because the parties were using words in a special sense,

. . . there must be either contractual language on which to15 hang the label of ambig uous or some yawning

void

. . . that cries out for an implied term.

Ext rinsic evidence should not be used to add terms to a contract that is plausibly complete

without them.

Id. at 146 (quoting Bidlack v. Wheelabrator Corp. , 993 F.2d

603 , 608 (7th Cir. 1993) (en banc)).

This Court has also stated that ―[i]f the arbitrator‘s

award has deviated from the plain meaning of a labor contract provision, it must find support in the contract itself or in prior practices demonstrating relaxation of the literal language .‖ NF&M Corp. v. United Steelworkers of Am. , 524 F.2d 756, 759 (3d C ir. 1975) (emphasis added) (citing H.K. Porter Co. v. United Saw, File & Steel Prod s . Workers of Am. , 333 F.2d 596 (3d Cir. 1964) )

.

It cannot be disputed that the Arbitrator focused his analysi s on whether Section 2‘s zipper clause precluded a finding of a past practice. As the District Court correctly noted, the Arbitrator never explicitly stated that Sections 3 and 9 were ambiguous. In the view of th e Company , the Arbitrator‘s failure to explicitly state that there was ambiguity in Sections 3 and 9, com bined with the alleged clarity in the CBA that the Company had exclusive scheduling rights, precludes consideration of the effect of past practice. Although the District Court agreed with the Company

, we do

not.

The pertinent portion of Section 3 states t hat ― [ t ] he Company retains the exclusive rights to manage the business and plant and to direct the working forces.‖ A pp. 29. The16 Arbitrator cited to this provision in a section of the a ward entitled ―Contract Language,‖ but as the Company points out,

he di d not explicitly address the import of Section 3 in his analysis. Indeed, he only mentions Section 3 as it pertains to Section 2‘s zipper clause, stating that the zipper clause‘s language is not ―a specific affirmation that management rights are not limite d by prior practices.‖ Id. at 91. Throughout the course of the dispute, from the submission of the first grievance through the arbitration hearing, the Company cited Section 3‘s management rights clause for the proposition that it had the right to schedule its workforce. As an example, the Company‘s first response to the Union‘s grievance stated that ―[t]he Company has the right to schedule

under Section 3

— MANAGEMENT page 4 of the Labor Agreement.‖ Id. at 66

- 67

. The ―Position of the Company‖ presented at th e arbitration hearing states that ―[o]ur management‘s rights clause includes the right to schedule.‖

Id. at 88.

From our reading of Section 3‘s management rights clause, however, the right to schedule does not appear anywhere in that clause. It appears, t herefore, to be

understandable that the Arbitrator refused to accept the notion that the contents of Section 3 unambiguously resolved the dispute presented to him. I t might have been preferable for the Arbitrator to state explicitly that Section 3 was ambi guous, therefore permitting him to address the past practice issue . His fail ure to do so does not by itself, however, require that the a ward be vacated. We note that ―[a]rbitrators have no obligation to the court to give their reasons for an
award.‖ Enter

. Wheel , 363 U.S. at 598.17 Before the District Court, and again before us, the Company relies heavily on the language of Section 9 of the CBA, entitled ―Hours of Work.‖ Nowhere in the ―Position of the Company ‖ contained in the Arbitration a ward does it

app ear that the Company cited to or relied upon the provisions of Section 9. The Company did refer to Section 9 in one of its responses to the Union‘s grievances, stating:

―Section 9 D (C) page 20 does not mandate any monetary penalty for a failure to give a four hour notice. That section deals with a reporting allowance for a shift when the employee was not notified a nd actually reports for work.‖

A pp. 70. The parties appear to agree that this reference by the Company was actually to Section 9B(1), which stat es that ―[i]f an employee is requested to report to work outside his regularly scheduled workweek and whether or not work is available he shall receive a minimum of 4 hours reporting pay at the employ ee‘s applicable rate of pay.‖ Id. at 38.

According t o the Company, the critical language of Section 9B(1) is ― [ i ] f an employee is requested to work outside his regularly scheduled workweek.‖ Brief of Appellee 15. Section 9A(1) defines a ―normal workweek‖ as ―40 hours per week, schedul ed on five successive d ays, from

M onday through Friday, inclusive. ‖ A pp. 38. From this the Company contends that this language unambiguously bestows upon it an exclus ive right to schedule. Again, we disagree.

First, we note that the Company misquotes the CBA, which actually st ates ―[i]f an employee is requested to report to work outside his regularly scheduled workweek

. . . .‖ Id. (emphasis added). More importantly, this interpretation of Section 9 was never put before the Arbitrator. Even if it had

been

, the language is not s o unambiguous as to compel a18 finding that the Company had the exclusive right to schedule employees for weekend work. Language discussing compensation for employees who are asked to report

— and upon reporting find that their services are not needed that day

— simply is not the equivalent of a clear statement that the Company has an exclusive right to schedule.

Even accepting the Company‘s argument that the CBA‘s plain meaning gives it the exclusive right to schedule, the Arbitrator would have been justified in deviating from that plain meaning because prior to the CBA‘s existence,

Lubik was allowed to work whenever the maintenance department worked . This constitutes a ―prior practice[] demonstrating relaxation of the literal language.‖ See NF&M Corp. , 524 F.2 d at 759. 1 As we discuss below, the Arbitrator

determined that t he CBA‘s zipper clause did not bar establishment of a prior practice , notwithstanding the Company‘s protestations

.

We conclude, the refore, that the CBA was not so free of ambiguity regarding the Company‘s exclusive right to

1 We note that this is in ten sion with this Court‘s pronouncement in Quick that ―extrinsic evidence of  ̳past practice‘ could be admitted, if at all, only to resolve an ambiguity in the CBA.‖ Quick , 245 F.3d at 247

- 248. The

Union contends that Quick and Skinner Engine are distinguishab le because they were not cases where this Court was asked to review an arbitration award. Although we need not decide it here, given that we disagree with the District Court‘s conclusion that the CBA unambiguously gives the Company exclusive scheduling rig hts, the Union persuasi vely distinguishes those cases.19 schedule its workforce such that the Arbitrator‘s inquiry into past practice and introduction of extrinsic evidence were not permissible. Our inquiry, however, does not end there. We

st ill must determine whether the a ward draws its essence from

the CBA.

V.

The Union maintains that a past practice both could be and was established, notwithstanding the zipper clause in

Section 2 of the CBA. As discussed previously, the Company

contend ed throughout the dispute that the clar ity of Section 3 precluded use of past practice to ―undo or su persede clear contract language. ‖ App. 67. The Company contended also that Section 2‘s zipper clause required any agreements to be put in writing and signed by the Union designate and the Compan y. Id. We will defer to the Arbitrator‘s ultimate conclusion that a past practice both could be and had been

established.

The Company and the District Court faulted the Arbitrator for formulating the issue present ed to him as

follows: ―Did the P arties to the Agreement as alleged in

Grievance No. 2

- 2009 establish, by their actions in the year 2008, an unwritten past practice and did the Company violate this past practice? If the answer is yes, what is the remedy?‖

Id. at 84. We agree with the Company that t he Union exaggerates its position when it states that, ― as directed by the Company , the Arbitrator focused on CBA Section 2, the purported  ̳zipper clause.‘‖ Brief of Appellant 22 (emphasis added). Although the Company did indeed stipulate that the

case inc luded three grievances all involving the same issue, we believe that the Company was merely acknowledging that20 all three grievances contained the same allegations regarding the Company‘s failure to schedule Lubik for weekend work. This acknowledgment is no t the same as stipulating that the Arbitrator was only to consider whether a past practice could be established under the CBA, and more specifically under

Section 2.

Nevertheless, ―the deference that is accorded to an arbitrator‘s interpretation of the c ollective bargaining agreement should also be accorded to an arbitrator‘s interpretation of the issue submitted.‖ Major League Umpires

Ass‘n , 357 F.3d at 272 (internal quotation marks and citations omitted). The Arbitrator considered the contentions of the parties, the evidence presented, and the history of the dispute

be tween the Union and the Company. He then determined

that he was required to decide whether the parties established a past practice by their actions in 2008, and whether that past practice w as v iolated. From the presentation of the parties‘ respective positions at the arbitration hearing, it appears that both the Union and the Company focused on whether a past practice could exist under the CBA, and specifically on whether Section 2‘s zipper clause precluded introduction of past practice into the CBA. Tellingly, the Company submitted only one non

-

joint exhibit during the arbitration hearing, a

handwritten document entitled ―Sat urdays N. Lubik Did Not
Work.‖ A pp. 83. Accordingly, we defer to th e Arbitrator‘s determination that the issue presented was whether a past practice had been established and violated.

In the a ward‘s ―Discussion on the Merits,‖ the Arbitrator discussed, at some length, the process by which a past practice can become esta blished, and he found that a binding past practice had in fact been established. He21 addressed the Company‘s contention that its Section 2 zipper clause precluded establishment of a past practice without a written agreement. The Arbitrator considered the Co mpany‘s interpretation of the zipper clause, and stated:

This language does not acknowledge that the written contract constitutes the parties‘ entire agreement, is not explicit with regard to a waiver of the right to bargain about other conditions, nor is it a specific affirmation that management rights are not limited by p rior practices.

Id. at 91.

Throughout the Arbitrator‘s discussion, he emphasized that the past practice began before the adoption of the CBA and continued thereafter , and it appears t hat he believed this provided further support for the proposition that the Company‘s zipper clause was not dispositive. Accordingly, we defer also to the Arbitrator‘s conclusion that a binding past practice had been established.

The sine qua non of judici al review of an arbitration

award is a heavy degree of deference to the arbitrator

. And

here the role of both a District Court and a Court of Appeals

is far different than that of a District Court reviewing a

decision of a Bankruptcy C ourt or a Court of Ap peals reviewing a be nch trial awar d. Arbitration is all about ―private court adjudication ,‖ and the use of arbitration has been rapidly increasing over the years and show s no signs of slowing. A rbitration procedures themselves have a lengthy history, with law merchant origins in medieval Europe and22 elsewhere . At bottom, arbitration is a kind of settlement technique in which a third party reviews the case and imposes a decision that is legally binding on both parties. It is designed to be faster and cheaper than resolving a matter in the trial courts, and it should not be subject to a lengthy and expensive judicial review.

A half century past, this Court made clear in Ludwig

Honold that an a ward draws its essence from the CBA if it

can be derived from the A greement in any rational way, and that a reviewing court may disturb only those awards demonstrating a manifest disregard of the Agreement. 405

F.2d at 1128. In view of the previous discussion of ambiguities in the CBA‘s language, and a pplying the teaching s of Ludwig Honold

, we conclude here that the Arbitrator‘s interpretation draws its essence from the CBA,

and that the Arbitrator did n ot manifestly disregard the CBA. Accordingly, the District Court should not have disturbed the

a ward.

* * * * *

The ju dgment of the District Court will be reversed

and an Order issued to enforce the Arbitrator‘s a ward.