Verizon Washington, D.C. Inc. v. Communications Workers
Verizon Washington, D.C. Inc. v. Communications Workers
Concurring Opinion
concurring:
I write separately to state that for me reversal is tied to the fact that the arbitrator adopted the CWA’s interpretation of Article 16B.l(f), which interpretation is itself grounded in Article 16B of the collective bargaining agreement. Although— following the Supreme Court’s lead — we apply a largely “hands off’ standard of review to an arbitral award, that does not mean anything goes, as even the CWA counsel recognized:
Q: What if he had not felt confined by the 150 days — the Union had taken a different position or said take it all the way back to the first day we got these additional duties. Would that be enough to say he had exceeded his authority?
Coslow: If he imposed a remedy that didn’t have reference to the 150 days and its relationship to notice, I think the Company’s argument would be much stronger. But he anchored it in the notice requirement, in the 150 days, in the Company’s breach. Those are all appropriate considerations in interpretation.
Q: ... Let me ask you one [other thing]. Have you given us an example[ ] in this case [of] what would have exceeded his authority?
Coslow: Well I suppose ... I think you’ve presented one and that is suppose he said, well I am going to, arbitrarily, because I think it’s fair ... I’m just [going to] grant these employees this amount of money just [be]cause I think they should have it. That, I think we’d all say oh that’s over the top. But he didn’t do that....
Oral Argument Recording, Verizon Washington, D.C. Inc. v. Commc’ns Workers of Am., No. 08-7092, at 49:49-51:08 (argued Apr. 21, 2009).
Opinion of the Court
Opinion for the Court filed by Circuit Judge HENDERSON.
Separate concurring statement filed by Circuit Judge HENDERSON.
The Communications Workers of America, AFL-CIO (CWA) appeals from the district court’s order granting summary judgment to Verizon Washington, D.C. Inc. (Verizon), vacating and remanding an arbitration award. Verizon Washington, D.C. Inc. v. Commc’ns Workers of Am., 569 F.Supp.2d 121, 129 (D.D.C. 2008). Because we conclude that the arbitration award “draws its essence from the collective bargaining agreement,” United Paper-workers Int’l Union v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (citation and quotation marks omitted), we reverse.
I.
Sometime in 1997, Verizon began to assign its Corporate Voice Mail Group employees (Voice Mail Clerks) additional duties. For a time, Verizon paid the Voice Mail Clerks extra for performing the new duties but stopped doing so at some point between 1998 and 2000. On December 9, 2001, the CWA filed a grievance on behalf of the Voice Mail Clerks, asserting that they were being unfairly treated in that they were performing the duties associated with a higher position (RCMAC Clerk) but were classified at, and paid the salary of, a lower position (General Clerk).
The dispute centers on Article 16B of the CBA, which sets forth the procedure Verizon and the CWA must follow
After arbitration hearings were held on April 1, 2005, July 14, 2005 and October 20, 2005, an arbitrator issued an award on February 28, 2006, concluding that Verizon “violate[d] Article 16.B by failing to give notice to [the CWA] and afford an opportunity to negotiate over its assignment of duties to Voice Mail Clerks outside of the scope of their General Clerk Job Description, constituting a redefinition or restructure of the existing job title for purposes of Article 16.B.” Opinion and Award of Arbitrator Susan T. Mackenzie, Commc’ns Workers of Am., Local 2336 v. Verizon Washington, D.C. Inc., CWA Case No. 2-04-21, at 12 (Feb. 28, 2006) (Mackenzie Award). Accordingly, the arbitrator directed Verizon to comply with Article 16B’s notification and negotiations requirements within 60 days of the issuance of her award. Id. at 13.
Pursuant to the award, Verizon and the CWA began negotiations but soon reached an impasse. The CWA, invoking its right to “demand that the issue of an appropriate schedule of wage rates be submitted for resolution to a neutral third party,” CBA at 25, then requested arbitration at some point before August 9, 2006. Another arbitrator heard the matter on September 15, 2006 and issued his award eight months later, on May 30, 2007.
1. The threshold issue before the arbitrator is to determine what discretion the Agreement affords him in fashioning an award in this matter. That is, is the arbitrator constrained to choose between the positions of the parties as in “last offer” arbitration, or is he free to identify and award some other outcome in the matter?
2. The principal issue before the arbitrator is, of course, to determine an award with respect to the appropriate wage schedule for the Voice Mail Clerks.
*1280 3. Finally, the arbitrator must determine a remedy. This will require the arbitrator to interpret the language of Article 16B.l(f) which states that “in no event shall the retroactive effect exceed 150 days.” Did the drafters of the Agreement intend, as the Company contends, that the new wage rate for the Voice Mail Clerks must be effective no more than 150 days prior to the date of the instant arbitrator’s award, or, pursuant to the Union’s interpretation, that the revised wage rate must have effect 150 days prior to [sic][4 ] the Union’s initial grievance, i.e., December 9, 2001?
Opinion and Award of Arbitrator Paul F. Gerhart, Verizon Washington, D.C. Inc. v. Commc’ns Workers of Am., Local 2336, Parties’ Case No.2001-91650, at 38-39 (May 30, 2007) (emphasis added) (Gerhart Award). The arbitrator determined that after two years of service, a Voice Mail Clerk should be “allowed to apply for and immediately be promoted to the Senior Voice Mail Clerk job title.” Id. at 54. He also held that “[a]ll current Voice Mail Clerks with two or more years of actual service in that title shall immediately be offered the opportunity to upgrade to the Senior Voice Mail Clerk job” and that any Voice Mail Clerk with two or more years of actual service as of December 9, 2001 “shall receive a pay adjustment reflecting the difference between what she (or he) actually earned and what she would have earned had she been properly classified as of that date.” Id. at 57 (emphasis omitted). In setting the retroactivity award, the arbitrator reasoned as follows:
... Inasmuch as the upgrade of experienced Voice Mail Clerks should have taken place in 2001, the effective date of the creation of the Senior Voice Mail job title shall be December 9, 2001, the date of the Union’s grievance in this matter....
The arbitrator is mindful of the admonition in Article 16B.l(f) which asserts that “in no event shall the retroactive effect exceed 150 days.” Had [Verizon] not violated the Agreement as found by Arbitrator Mackenzie, and had [it] properly notified [the CWA] of the changes in the Voice Mail Clerk job in response to [the CWA’s] December 2001 grievance, and had the matter been processed and ultimately referred to a “neutral third party” as required by Article 16B. 1(e) and (f), a decision by the neutral third party would have been rendered on or about May 9, 2002 which is 150 days after December 9, 2001.[5 ] Thus, in the absence of the contractual violation by [Verizon], this neutral third party award would have been effective on December 9, 2001, fully within the bound*1281 aries of retroactivity prescribed by the [CBA]. It would shock the sensibilities of any reasonable person if [Verizon] were allowed to benefit from its own bre[a]ch of the [CBA], as found by Arbitrator Mackenzie, particularly since it violated the very Article of the [CBA] that it now seeks to use to limit the contractually agreed-upon remedy in this matter.
Id. at 55-56.
On August 13, 2007, Verizon filed suit in district court under section 301(a) of the Labor-Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a), seeking partial vacatur of the award to the extent the retroactive pay award exceeded 150 days.
II.
We have “final order” jurisdiction of this appeal under 28 U.S.C. § 1291 (“courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States”). Despite remanding the matter to an “arbitrator of the parties’ choosing,” the district court order is a final, appealable order given that the remand — limited to modifying the retroactive effect of the award “in a manner consistent with ... [the court’s] Opinion,” that is, retroactive to 150 days before the date of the arbitrator’s award— is ministerial in nature. See Verizon Washington, D.C. Inc., 569 F.Supp.2d at 129; Pueblo of Sandia v. Babbitt, 231 F.3d 878, 881 (D.C.Cir. 2000) (“[R]emand orders may be considered final where a court remands for solely ‘ministerial’ proceedings .....”); cf. Jays Foods, L.L.C. v. Chem. & Allied Prod. Workers Union, Local 20, 208 F.3d 610, 612 (7th Cir. 2000) (“ ‘Provided that the matter left for determination is not merely ministerial, ... an order that does not determine the entire substantive relief to which the plaintiff is entitled is not a final decision ....’”) (quoting Chrysler Motors Corp. v. Int’l Union, Allied Indus. Workers of Am., 909 F.2d 248, 249 (7th Cir. 1990)) (emphasis added).
The CWA contends that under United States Supreme Court precedent as well as
We “may vacate a labor arbitration award only if it does not ‘draw[ ] its essence’ from the terms of the collective bargaining agreement.” Howard Univ., 512 F.3d at 720 (quoting Enter. Wheel & Car Corp., 363 U.S. at 597, 80 S.Ct. 1358). We therefore “ ‘play only a limited role when asked to review the decision of an arbitrator.’ ” Teamsters Local Union No. 61 v. UPS, Inc., 272 F.3d 600, 604 (D.C.Cir. 2001) (quoting United Paper-workers Int’l Union v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987)). Indeed, “ ‘[w]hile courts ... may review the substance of an arbitration award, only the narrowest circumstances will justify setting the award aside. An arbitrator cannot, for instance ... ignore the contract and dispense his own brand of industrial justice. But if an arbitrator was arguably construing or applying the contract, a court must defer to the arbitrator’s judgment.’ ” Howard Univ., 512 F.3d at 720 (quoting Madison Hotel v. Hotel & Rest. Employees, Local 25, 144 F.3d 855, 858-59 (D.C.Cir. 1998) (en banc) (citations and internal quotation marks omitted and emphasis added)). Moreover, an arbitrator need not be “ ‘confined to the express provisions of the contract’ ” when issuing his award but may also consider “the structure of the contract as a whole.” Madison Hotel, 144 F.3d at 859 (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). As the Supreme Court declared in Misco, Inc.,
To resolve disputes about the application of a collective-bargaining agreement, an*1283 arbitrator must find facts and a court may not reject those findings simply because it disagrees with them. The same is true of the arbitrator’s interpretation of the contract. The arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract____[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.
484 U.S. at 38,108 S.Ct. 364.
Read in its entirety, the arbitrator’s opinion and award manifests that he accepted the CWA’s interpretation of Article 16B.l(f) in concluding that December 9, 2001, the date the CWA filed its grievance, was the “effective date of the creation of the Senior Voice Mail job title.” Gerhart Award at 55; see also Br. of Appellant at 20-21. In fact, the CWA’s interpretation drew its essence from the CBA. But regardless whether it did, the arbitrator’s decision did. While the arbitrator recognized his duty to “interpret the language of Article 16B. 1(f) which states that ‘in no event shall the retroactive effect exceed 150 days,’ ” he then had to determine whether “as [Verizon] contends, ... the new wage rate for the Voice Mail Clerks must be effective no more than 150 days prior to the date of the instant arbitrator’s award, or, pursuant to [the CWA’s] interpretation, ... the revised wage rate must have effect 150 days prior to [sic] the Union’s initial grievance, i.e., December 9, 2001.” Gerhart Award at 38-39. In setting the December 9, 2001 date, then, the arbitrator interpreted the collective bargaining agreement as the CWA did— namely, that the 150-day retroactivity provision must be read in view of Verizon’s failure to give notice under Article 16B.l(a) of the CBA. Gerhart Award at 17-18. So read, the 150-day retroactivity provision correlates to the period the arbitration process is to take once proper notice is given.
Finally, the arbitrator included a hypothetical calculation that “[had Verizon] not violated the Agreement as found by Arbitrator Mackenzie, and had [Verizon] properly notified [the CWA] of the changes in the Voice Mail Clerk job in response to the [ ] December 2001 grievance, and had the matter been processed and ultimately referred to a ‘neutral third party’ as required by Article 16B. 1(e) and (f), a decision by the neutral third party would have
So ordered.
. A General Clerk is responsible for "the handling of orders and preparation of reports, accessing multiple systems for inputting retrieval of data on a computer, and heavy client interfacing at all levels of management[.]” Opinion and Award of Arbitrator Susan T. Mackenzie, Commc’ns Workers of Am., Local 2336 v. Verizon Washington, D.C. Inc., CWA Case No. 2-04-21, at 8 (Feb. 28, 2006) (quotations omitted) (Mackenzie Award). An RCMAC Clerk, on the other hand, must "translat[e] ... complex codes in switches ...[,] ensure that the changes made in one service do not affect other services, [and] engage in time-sensitive projects and coordinating work.” Id. at 10. The General Clerk position is “semi-skilled" while the RCMAC Clerk position is “technical.” Opinion and Award of Arbitrator Paul F. Gerhart, Verizon Washington, D.C. Inc. v. Commc’ns Workers of Am., Local 2336, Parties' Case No.2001-91650, at 6 (May 30, 2007) (Gerhart Award).
. Article 16B.l(a) of the CBA requires Verizon to "notify the Union in writing of [a new] job title or classification and ... furnish a job description of the duties and the wage rates and schedules initially determined for such job titles and classifications____ Following such notice to the [CWA], [Verizon] may proceed to staff such job titles or classifications.” CBA at 24. Article 16B.l(b) gives the CWA, once notified, the right to “initiate negotiations concerning the initial wage rates or schedules established by [Verizon].” Id.
. Article 16B.l(f) provides in part:
At the request of either party, a hearing shall be held to receive ... evidence. Any such hearing shall be held within thirty (30) days after the matter is referred to the neutral third party.... A written decision as to the appropriate schedule of wage rates will be rendered by the neutral third party within sixty (60) days of the date that the matter is referred for resolution....
CBA at 25 (emphasis added).
. The arbitrator misstated the CWA's interpretation here. December 9, 2001 is the date on which the CWA filed its initial grievance, see Mackenzie Award at 4; Gerhart Award at 17, and the CWA argued that it is to this date that the retroactivity award should reach back, see Gerhart Award at 17. The error is simply a scrivener’s error, however, because the arbitrator correctly implemented the CWA’s interpretation in spelling out his remedy. See infra pp. 12-14.
. Although the arbitrator did not specify how he settled on the 150-day time period between the CWA’s December 9, 2001 grievance and the hypothetical May 9, 2002 award, it appears that he relied on the timetable set out in the CBA. Under the CBA, the CWA has 60 days from Verizon’s initial notice of the creation, restructuring or redefinition of a job title or classification in which to negotiate and reach agreement. CBA at 25. If no agreement is reached, the CWA has an additional 30 days to demand arbitration. Id. The arbitrator has 60 days from the date the matter is referred for resolution to issue his award. Id.; see supra note 3. Added together, 150 days from the date of the CWA’s grievance is May 9, 2002.
. Section 301(a) of the LMRA provides that "[s]uits for violation of contracts between an employer and a labor organization representing employees ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”
. Relying on Jay’s Foods, supra, the CWA asserts that our subject matter jurisdiction comes from the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(E), which provides that "[a]n appeal may be taken from ... an order ... modifying, correcting, or vacating an [arbitral] award.” Br. of Appellant at 1-2. Verizon's suit was brought under section 301 of the LMRA, however, and, accordingly, we do not reach the applicability vel non of the FAA.
. See also section 1(d) of Article 16B, which provides "[i]f agreement is reached between the parties within the sixty (60) days following the Union’s receipt of notice from [Verizon] concerning the initial wage rates and schedules, the agreed upon wage rates and schedules shall be retroactive to the date the change or new job was implemented.” CBA at 25.
. Cf. Grand Rapids Die Casting Corp. v. Local Union No. 159, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, 684 F.2d 413, 415 (6th Cir. 1982) (Sixth Circuit held arbitrator exceeded his authority by ignoring relevant contractual provisions because he found them so "offensive” as to "shock[] [his] conscience.”); see also Anheuser-Busch, Inc. v. Int’l Bhd. of Teamsters, Local Union No. 744, 280 F.3d 1133, 1138 (7th Cir. 2002) ("arbitrator cannot shield himself from judicial correction by merely 'making noises of contract interpretation' ") (quoting Ethyl Corp. v. United Steelworkers of Am., 768 F.2d 180, 187 (7th Cir. 1985)) (emphasis omitted).
. See supra note 5, showing the 150-day calculation between the time of notice under Article 16B.l(a) and the issuance of an arbitration award under Article 16B.l(f).
Reference
- Full Case Name
- VERIZON WASHINGTON, D.C. INC., Appellee v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, as Designated Agent and Representative for Local 2336, Appellant
- Cited By
- 5 cases
- Status
- Published