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Despite finding that an arbitrator committed a “glaring” mistake when he premised his ruling on language that did not exist in a collective bargaining agreement, a divided panel of the 3rd U.S. Circuit Court of Appeals has ruled that the award must stand because it nonetheless “draws its essence” from the CBA. But a dissenting judge said he would have overturned the award because the arbitrator violated an explicit provision of the CBA that prohibits arbitrators from adding to or modifying the CBA in any way. Writing for the majority in Brentwood Medical Associates v. United Mine Workers of America, U.S. Circuit Judge Franklin S. Van Antwerpen found that even where an arbitrator “inexplicably cites language in his decision that cannot be found in the relevant collective bargaining agreement,” the court has a duty to inquire further to determine if the decision has any valid basis. If, after eliminating the mistake, a proper basis for the award can be found, the award must be upheld, Van Antwerpen said. Van Antwerpen found that arbitrator John M. Felice’s decision in a union grievance was just such a case since his obvious mistake in quoting language that did not exist in the CBA was not the only basis for his decision. According to court papers, the grievance arose when Brentwood Medical Associates refused to allow Denise Cope to exercise her seniority rights. Cope had previously worked as a phlebotomist until she was promoted in February 2001 to a post as a charge entry associate. But just 10 months later, BMA eliminated Cope’s new position. Cope requested permission to “bump” outside her classification and return to her position as a phlebotomist — displacing the least senior person in that classification. BMA refused and instead offered her the position of front office clerk. “Bumping” is a process by which an employee who has less seniority than another is forced out so that a more senior employee can take the junior employee’s position and avoid layoff. When the grievance went to arbitration, the arbitrator ruled in favor of the union and ordered BMA to allow Cope to exercise her seniority rights and bump the least senior phlebotomist. Van Antwerpen noted that, in the arbitrator’s decision, Felice “asked rhetorically” why, if bumping was not permitted under the collective bargaining agreement — as BMA contended — did the CBA include language governing bumping. Felice’s decision included the following quote from the CBA: “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.” In a federal suit seeking to have the decision set aside, BMA argued that the quoted language does not exist anywhere in the CBA. But U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania upheld the arbitrator’s decision, saying the courts have a strictly limited role in reviewing arbitration decisions and that Felice’s ruling was a rational one that was consistent with the terms of the CBA. On appeal, BMA insisted that Felice had exceeded his authority when he added language to the CBA. Attorney James A. Prozzi of Jackson Lewis in Pittsburgh argued that Felice’s reference to the language found nowhere in the CBA fatally tainted the award because the reference was essential to his ultimate conclusion and was inseparable from the remainder of the award. Van Antwerpen disagreed, saying “if this alleged overstep by the arbitrator is the only leg that supports his decision, it is within our discretion to vacate the award.” But Van Antwerpen found that the “narrow issue” to be decided by the court was “whether the arbitrator’s conclusion is supported, in any way, by a rational interpretation of the collective bargaining agreement.” Van Antwerpen, in an opinion joined by Senior U.S. District Judge Milton I. Shadur of the Northern District of Illinois, found that Felice began by saying that he was confronted with contrary interpretations of the CBA on the issue of whether employees affected by layoff may exercise their seniority rights 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, Felice reviewed the CBA’s provisions and found that they led to the “inescapable conclusion that the parties have consistently recognized seniority preference.” Van Antwerpen found that Felice’s discussion of the issue provided “a clear basis” on which he could have concluded that seniority preference existed unitwide. “This alone provides ample basis to uphold the award,” Van Antwerpen wrote. Van Antwerpen noted that Felice concluded his review by noting that no provision in the CBA would prevent bumping unitwide. “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,” Van Antwerpen wrote. “While it is true that the clearest support for the arbitrator’s conclusion comes from the language he interpolated, there is sufficient substance in the remainder of the discussion to pass the minimum rationality threshold.” AMBRO DISSENTS In dissent, U.S. Circuit Judge Thomas L. Ambro said “this case presents the rare situation in which it is appropriate for our court to vacate an arbitration award.” Ambro noted that the CBA explicitly states that an arbitrator “shall not add to, subtract from, or modify in any way” any of the CBA’s provisions. “Despite this leave-no-doubt language,” Ambro said, “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.” In doing so, Ambro said, the arbitrator violated the CBA and “thus exceeded the scope of his contractually delegated authority.” Ambro complained that his colleagues in the majority recognized that the arbitrator’s “inexplicable quotation” of language not in the CBA was a clear violation, but that they nevertheless concluded that the 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. But I do not agree that this standard has been met here,” Ambro wrote. Instead, Ambro said he would have sided with BMA because the language added by the arbitrator seemed to have “tipped the balance” in his conclusion that the position BMA took in the arbitration was inconsistent with the terms of the CBA. “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,” Ambro wrote. Van Antwerpen responded to Ambro’s dissent with a footnote that said the arbitrator’s decision was premised on more than the erroneously added language. “Had this [the added language] 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,” Van Antwerpen wrote. “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,” Van Antwerpen wrote. The union was represented in the appeal by attorneys Michael J. Healey and Douglas B. McKechnie of Healey & Hornack in Pittsburgh.

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