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 SERVICE WORKERS

INTERNATIONAL UNION, AND ITS 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 Judge: Hon. David S. Cercone

__________

Argued February 13, 2013
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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

Pittsburgh, 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, Circuit 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.
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judgment 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 Richard

D. Sambuco (the ―Arbitrator‖), granted the Company‘s 

motion for summary judgment, and denied the Union‘s 

motion for summary judgment. 

In 2009, the Union submitted three grievances on 

behalf of Company 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 and 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 Agreement (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 reverse 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 representative for clerical and technical 
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employees at the plant. From September 1, 2008 through 

February 29, 2012, the Company and the Union were parties 

to a CBA. The CBA included a multi-step grievance 

resolution procedure to be used when the Union and the 

Company disagreed over ―interpretation or application of, or 

compliance with the provisions‖ of the CBA. App. 31. Under 

the CBA, unresolved grievances were submitted to 

arbitration. 

In February and March of 2009, the Union submitted 

three grievances 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, the Union stated 

that 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 was not scheduled to work. Id.

Per the grievance resolution procedure, the Company 

submitted answers to the 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 existence of  ̳past 

practice‘ in an[y] form,‖ and because ―[t]he notion of a  ̳past 

practice‘ cannot undo or supersede clear contract language[;] 

Section 3 is very clear.‖ Id. at 66. The Company additionally 
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asserted that ―Section 2 – Scope of the Agreement [] states 

that any agreements must be put in writing and signed by the 

union designate 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 does not contain a 

Section 9(D)(C), though, and page 20 contains 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 provisions of the CBA command our attention 

in deciding this case, we set forth the following relevant 

sections thereof.

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 Agreement.
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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.

Section 9 of the CBA is entitled ―Hours of Work.‖ 

Two 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, inclusive.

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:
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Agreements for the plant will only be 

recognized if they are in writing and signed by 

the designate of 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 the Arbitrator. The Arbitrator‘s award 

contains a section that summarizes the positions of the parties 

as presented 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.
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The Company argued that there was no past practice in 

its Agreement with the Union, because its zipper clause, 

located at Section 2 of the CBA, precluded a finding of past 

practice. It argued also that the CBA‘s Section 3 management 

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 Parties 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. 

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 not 

cite to or refer to Section 9, the ―Hours of Work‖ section. He 

focused his analysis and discussion on whether a past practice 
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had in fact been established, and whether Section 2‘s zipper 

clause prohibited a finding of past practice. 

The Arbitrator concluded 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 not 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 agreement 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, 

repetition, acceptability, underlying circumstances, 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 

schedule. 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 constant 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 that the Union and the 

Company did establish a past practice that the Company 

violated when Lubik was not allowed to work along with the 
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maintenance department employees on weekends.

Accordingly, the Arbitrator sustained Lubik‘s grievances and 

awarded him back 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 draw its essence 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 CBA‘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 

impermissibly modifies the CBA. Id. at 24. 

The Company and the Union filed cross-motions 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, 178 

(3d Cir. 2001). ―[W]e apply the same standard the district 
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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 United Steelworkers of 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 be 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).

Indeed, a reviewing 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., 396 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); Exxon Shipping Co. v. Exxon Seamen‘s Union, 993 

F.2d 357, 360 (3d Cir. 1993); Virgin Islands Nursing Ass‘n‘s 

Bargaining Unit 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 or 
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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.‖ 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 awards 

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).

III.

The overarching question presented to us here is 

whether the Arbitrator‘s award draws its essence from the 

CBA. The Union insists that it does; the Company argues, in 

total agreement with the District Court, that it does not. 

The District Court concluded that the Arbitrator‘s 

award 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 workforce. In addition, the Court concluded that because 

the Arbitrator‘s award did 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 

bargain 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 ―the 
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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 for; and 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 as 

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 arbitrators to ―an exalted 

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

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

may not overrule an arbitrator simply because it 

disagrees with the arbitrator‘s construction of 

the contract, . . . or because it believes its 

interpretation of the contract is better than that 

of the arbitrator. 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.
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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 vested it with the exclusive right to 

schedule its employees. Citing Pennsylvania Power, it argues 

that the Arbitrator manifestly disregarded the CBA and 

ignored the plain language of Sections 3 and 9, such that the 

award 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 threshold issue for our 

consideration: was the CBA so unambiguous as to the 

Company‘s right to schedule its workforce such that the 

Arbitrator‘s award, 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 statement, Quick cited to U.A.W. Local 1697 v. Skinner 

Engine Co., 188 F.3d 130 (3d Cir. 1999), which, quoting an

opinion of the U.S. Court of Appeals for the Seventh Circuit, 

stated:

Although extrinsic evidence is admissible to 

show that a written contract which looks clear is 

actually ambiguous, perhaps because the parties 

were using words in a special sense, . . . there 

must be either contractual language on which to 
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hang the label of ambiguous or some yawning 

void . . . that cries out for an implied term. 

Extrinsic 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 Cir. 1975) (emphasis added) (citing H.K. Porter Co.

v. United Saw, File & Steel Prods. Workers of Am., 333 F.2d 

596 (3d Cir. 1964)). 

It cannot be disputed that the Arbitrator focused his 

analysis 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 the Company, the 

Arbitrator‘s failure to explicitly state that there was ambiguity 

in Sections 3 and 9, combined 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 that ―[t]he 

Company retains the exclusive rights to manage the business 

and plant and to direct the working forces.‖ App. 29. The 
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Arbitrator cited to this provision in a section of the award 

entitled ―Contract Language,‖ but as the Company points out, 

he did 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 limited 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 the 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, therefore, to be 

understandable that the Arbitrator refused to accept the notion

that the contents of Section 3 unambiguously resolved the 

dispute presented to him. It might have been preferable for 

the Arbitrator to state explicitly that Section 3 was 

ambiguous, therefore permitting him to address the past 

practice issue. His failure to do so does not by itself, however, 

require that the award 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. 
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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 award does it 

appear 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 and actually reports for work.‖ 

App. 70. The parties appear to agree that this reference by the 

Company was actually to Section 9B(1), which states 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 employee‘s applicable rate of pay.‖ Id. at 38. 

According to 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, scheduled on five successive days, from 

Monday through Friday, inclusive.‖ App. 38. From this the 

Company contends that this language unambiguously bestows 

upon it an exclusive right to schedule. Again, we disagree. 

First, we note that the Company misquotes the CBA, 

which actually states ―[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 so unambiguous as to compel a 
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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.2d at 759.1 As we discuss below, the Arbitrator 

determined that the CBA‘s zipper clause did not bar 

establishment of a prior practice, notwithstanding the 

Company‘s protestations. 

We conclude, therefore, that the CBA was not so free 

of ambiguity regarding the Company‘s exclusive right to 

 

1 We note that this is in tension 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 

distinguishable 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 rights, the Union persuasively 

distinguishes those cases.
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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 

still must determine whether the award 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 

contended throughout the dispute that the clarity of Section 3 

precluded use of past practice to ―undo or supersede 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 

Company. 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 presented to him as 

follows: ―Did the Parties 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 the 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 included three grievances all involving the same issue, 

we believe that the Company was merely acknowledging that 
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all three grievances contained the same allegations regarding 

the Company‘s failure to schedule Lubik for weekend work. 

This acknowledgment is not 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 collective 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 

between 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 was violated. 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 ―Saturdays N. Lubik Did Not 

Work.‖ App. 83. Accordingly, we defer to the Arbitrator‘s 

determination that the issue presented was whether a past 

practice had been established and violated.

In the award‘s ―Discussion on the Merits,‖ the 

Arbitrator discussed, at some length, the process by which a 

past practice can become established, and he found that a 

binding past practice had in fact been established. He 
21

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 Company‘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 prior

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 that 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 judicial 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 Court or a Court of Appeals

reviewing a bench trial award. Arbitration is all about 

―private court adjudication,‖ and the use of arbitration has 

been rapidly increasing over the years and shows no signs of 

slowing. Arbitration procedures themselves have a lengthy 

history, with law merchant origins in medieval Europe and 
22

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 award draws its essence from the CBA if it 

can be derived from the Agreement 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 applying the 

teachings of Ludwig Honold, we conclude here that the 

Arbitrator‘s interpretation draws its essence from the CBA, 

and that the Arbitrator did not manifestly disregard the CBA. 

Accordingly, the District Court should not have disturbed the 

award. 

* * * * *

The judgment of the District Court will be reversed 

and an Order issued to enforce the Arbitrator‘s award.