Unite Here Local 23 v. Il Creations of Maryland Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITE HERE LOCAL 23,
Plaintiff,
v. Civ. No. 15-cv-l 165 (KBJ)
I.L. CREATIONS OF MARYLAND INC.,
Defendant.
VVVVVVVVVVV
MEMORANDUM OPINION
Defendant I.L. Creations of Maryland Inc. (“IL Creations”) is a food-service
company that entered into a collective bargaining agreement (“CBA”) with a labor
union, Plaintiff Unite Here Local 23 (“Unite Here”), pertaining to the employment of
some ofIL Creations’s employees. In the fall of 2013, Unite Here filed a grievance
pursuant to procedures outlined in the CBA, asserting that IL Creations was tasking
non-union workers at its United States Department of Agriculture (“USDA”) location
with work that is reserved for union members under the CBA. Thereafter, IL Creations
and Unite Here engaged in arbitration as prescribed in the CBA, and the arbitrator
ultimately and generally resolved the dispute in Unite Here’s favor. When IL Creations
responded by expressly refusing to comply with the arbitrator’s ruling absent a court
order, the instant action followed; Unite Here seeks to enforce the arbitrator’s judgment
pursuant to Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29
U.S.C. § 185. (Compl., ECF No. 1,11111—5.)
Before this Court at present is Unite Here’s motion to confirm the arbitration
award and also its request for an award of attorneys’ fees. (Pl.’s Mot. to Confirm
Arbitration Award & for an Award of Attorneys’ Fees (“Pl.’s Mot”), ECF No. 7; Pl.’s
Mem. in Support of Pl.’s Mot (“Pl.’s Mem.”), ECF No. 7-1.) IL Creations opposes the
motion (Def.’s Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 15), and has also filed a
separate counterclaim (Def.’s Answers, Aff. Defenses & Countercl. (“Def’s
Countercl.”), ECF No. 10), asserting that the arbitrator’s award should be vacated on
the grounds that the arbitrator lacked jurisdiction to resolve the dispute and that, in any
event, the arbitrator’s decision is substantively flawed because it deviates
impermissibly from the terms ofthe CBA. Because this Court finds that arbitration
awards are entitled to extreme deference; that IL Creations has forfeited any challenge
to this arbitrator’s jurisdiction to rule; and that IL Creations’s attack on the arbitrator’s
decision comes nowhere near to overcoming the high barrier to judicial overrides of
arbitrator decisions, Unite Here’s motion to enforce the arbitration award will be
GRANTED and IL Creations’s counterclaim will be DISMISSED. In addition, as
explained below, this Court concludes that Unite Here is entitled to recoup reasonable
attorneys’ fees that this case forced it to incur. A separate order consistent with this
Memorandum Opinion will follow.
I. BACKGROUND
The CBA at issue in the instant case establishes that Unite Here members must
be the individuals who perform certain positions and duties at various IL Creations
facilities. (See Collective Bargaining Agreement (“CBA”), Ex. A to Pl.’s Mot., ECF
No. 7-4, at 5, 8.)1 Specifically, and as relevant here, the agreement states that “[IL
I Page-number citations to the documents the parties have filed refer to the page numbers that the
grounds that the arbitrator had no jurisdiction to rule on the disputed issues in this case,
and that the arbitrator “ignored the terms ofthe CBA[.]” thereby issuing an
impermissible remedy. (Def.‘s Countercl. at 8.) As explained below, IL Creations has
waived its jurisdictional challenge, and its contention that the arbitrator’s remedy
transcends the bounds of the CBA is entirely unpersuasive. Additionally, and even
more fundamentally, under the well-established legal standards that are applicable in
this case, once a party elects to submit disputes to arbitration for final determination in
lieu of proceeding in court, it also necessarily agrees to abide by the arbitrator’s
decision—meaning that courts must generally refrain from interfering with the outcome
and the losing party to a consented—to arbitration proceeding cannot just refuse to
perform as the arbitrator directs. This is especially so where, as here, the losing party
willingly participated in an arbitration process that the parties’ agreement clearly
contemplated and the arbitrator’s jurisdiction to rule was not previously questioned.
Thus, this Court easily concludes both that the arbitration award must be enforced, and
that Unite Here is entitled to recover the reasonable attorneys’ fees that it incurred in
litigating this matter.
A. This Court Must Defer To The Decision That The Arbitrator Made In
This Case, Which Is Based On An Interpretation And Application Of
The Parties’ CBA After An Arbitration Proceeding In Which The
Defendant Fully Participated
As explained above, arbitration is an optional alternative to the resolution of a
labor-related dispute in court, and ifthe parties elect to submit potential disputes to
arbitration for final decision, they generally must abide by the result. That is, in
essence, what Unite Here maintains in bringing this enforcement action and filing the
motion to confirm, and this principle undermines IL Creations’s “understanding” that it
11
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"do[es] not have to follow the [arbitrator’s] decision until a court order affirming the
decision.” (Yoo Email at 2.)
As applied here, the parties’ CBA provides that any “dispute[s] arising out ofthe
expressed terms or conditions” of the CBA that are unresolved through the two-step
grievance process may be referred “for final decision and determination to an impartial
arbitrator[,]” and records the parties’ agreement that any decision rendered in these
circumstances would be “final and binding” on all parties involved. (CBA at 21—22.)
The bargaining-unit-work dispute indisputably arises from the terms of the CBA, and
notwithstanding IL Creations’s protestations, there is also no question that the arbitrator
“constru[ed] or appl[ied]” the CBA in reaching his decision, Nat ’1 Postal Mail
Handlers, 589 F.3d at 441 (citation omitted), because his investigation of the
bargaining-unit question repeatedly cites the relevant CBA provisions and applies them
to the facts. (See, e.g., Award at 13 (observing that IL Creations violated the CBA’s
ban on non-union employees performing union work and citing CBA provisions); id. at
8 (noting that the relevant question hinged on whether the disputed positions required
qualifications and duties impermissibly similar to the positions listed in Appendix 7 and
Exhibit B of the CBA). Thus, IL Creations’s contention that it need not adhere to the
arbitration decision is specious on its face, and delving further, as explained below, this
Court also finds that there is absolutely no basis for the arbitrability and substantive
objections that IL Creations raises.
First, with respect to arbitrability, IL Creations claims that it need not adhere to
the arbitrator’s decision due to the arbitrator’s lack ofjurisdiction under the CBA to
rule on this dispute, because Unite Here waived its right to arbitrate. (See Def.’s Opp’n
12
at 9—14 (basing this argument—somewhat contradictorin—on the assertions that Unite
Here failed to submit a written grievance in accordance with the CBA’s grievance
procedure, and that the grievance it submitted was untimely).) But IL Creations said
nothing about this alleged procedural defect during the arbitration process, which is
fatal to its current lack-of—jurisdiction contention. See Howard Univ., 512 F.3d at 720
(explaining that because “arbitration is a matter of consent[,]” one who “submits to
arbitration without objecting to the arbitrator’s jurisdiction . . . may fairly be said to
have consented to the arbitration, and the other party, having gone forward with the
proceeding, may fairly be said to have relied upon that consent”); id. (emphasizing that
“a party that does not object to the arbitrator’s jurisdiction during the arbitration may
not later do so in court” (emphasis added)); see also United Indus. Workers, 987 F.2d at
169 (observing that allowing a party that consented to arbitration by its actions to
“vacate the award on the grounds that it never agreed to arbitrate the dispute would give
[it] two bites at the apple . . . to obtain a favorable outcome”). To put it bluntly, IL
Creations clearly “slept through its opportunity to object to the arbitrator’s jurisdiction
and may not avoid the consequence now that it has awakened.” Howard Univ., 512
F.3d at 721.
IL Creations fares no better with respect to its arguments regarding the reach of
the arbitrator’s remedy, and in particular, its assertion that the award should be vacated
because the selected remedy “disregards the terms ofthe CBA.” (Defi’s Opp’n at 16.)
IL Creations first rails against the arbitrator’s requirement that it post four ofthe
disputed positions as available and fill them in accordance with the CBA’S
requirements, asserting that the arbitration award “includes a remedy that goes well
13
beyond the confines ofthe alleged grievance.” (Id. at 14.) This contention is patently
flawed, first, because it is based on the assumption that an arbitrator’s remedy must be
limited to the confines ofthe initial grievance, an assumption that is not based in the
CBA and appears to have been plucked from thin air.2 IL Creations also ignores the
fact that, ifa CBA contemplates that an arbitrator will craft remedies for CBA
violations, courts are not free to disagree with an arbitrator’s “honest judgment”
regarding the proper remedy absent an agreed-upon limitation on thatjudgment. Misco,
484 US. at 38, 41. As noted, this means the breadth ofthe arbitrator’s remedial
authority is itself a “question of contract interpretation that the parties have delegated
to the arbitrator[,]” and the arbitrator’s answer to that question receives the
extraordinarily deferential review applicable to such determinations. Madison Hotel,
144 F.3d at 857 (quoting W.R. Grace & Co. v. Local Union 759, Int ’1 Union of United
Rubber, Cork, Linoleum & Plastic Workers ofAm., 461 US. 757, 765 (1983)).
Understanding that much resolves the point. As already noted, the arbitrator in
the instant case made explicit and repeated references to the CBA both in framing the
dispute and in explaining what IL Creations had to do to comply with the agreement
(see, e.g., Award at 3, 11—14), and in so doing, sufficiently demonstrated that he was
construing and applying that contract in crafting the remedy. And no contractual
limitations upon that remedial authority are apparent—in particular, nothing in the CBA
2 IL Creations points to a paragraph in the CBA that addresses the requirements of a properly filed
grievance and provides that a grievance must contain “the remedy that is being sought[.]” (Def.’s
Opp’n at 14 (referencing CBA at 22).) But that requirement is not at all the same as mandating that the
arbitrator’s remedy be identical to the relief described in the grievance; indeed, it is “commonplace in
arbitration proceedings” that “the scope ofthe issues develop[s] informally during the course ofthe
parties’ presentations.” Madison Hotel, 144 F.3d at 857. Moreover, under the applicable deferential
standard, more is necessary to show the arbitrator contravened an agreed-upon limitation on his
remedial powers.
l4
supports IL Creations’s beliefthat the remedy an arbitrator issues cannot deviate from
the scope of the initial grievance. Consequently, this Court has “no authority to
disagree” with the arbitrator’s honest judgment regarding this remedy’s propriety.
Misco, 484 US. at 38; see also id, at 41 (observing that the wide berth given to the
arbitrator’s “informed judgment" as to the “fair solution ofa problem” is especially
pertinent “when it comes to formulating remedies” (citation and emphasis omitted)).
1L Creations’s alternative attack on the remedy is similarly unsuccessful. As far
as the Court can tell, IL Creations seems to think that the arbitrator believed Article 16
of the agreement, which deals with promotions and job openings, gave him his power to
order the remedy, although Article 16 does not expressly authorize the remedy the
arbitrator ordered. (See Def.’s Opp’n at 16—17.) But the arbitrator did not purport to
find remedial authority in Article 16; rather, the decision as a whole makes clear that
the arbitrator was simply reminding IL Creations of the fact that, when it posted the
new positions as ordered, it would have to abide by the terms ofthe agreement that
relate to the posting of newjob vacancies, which appear in Article 16. (See, e.g.,
Award at 12 (“[IL Creations] must post the positions within [fifteen] days of receipt of
this [Award] and fill the positions in accord with Article 16 of the CBA.”).) And,
again, it is key that [L Creations identifies no CBA provision that restricts the
arbitrator’s otherwise broad remedial powers such that ordering the positions to be
reclassified and filled as the arbitrator did constituted a violation of the agreement.
Thus, while this Court would be required to overlook even a serious error under the
applicable deferential standard, see Nat ’1 Postal Mail Handlers, 589 F.3d at 441, here,
there is simply no error to overlook.
15
In sum, IL Creations has forfeited any objection to the arbitrator’s jurisdiction
and the arbitrator in this case “neither rendered a judgment based on external legal
sources, wholly without regard to the terms of the parties’ contract, nor made a finding
completely inexplicable and border[ing] on the irrational.” OPCMIA, AFL-CIO v.
Pullman Shared Sys. Tech, Inc., 908 F. Supp. 2d 251, 257 (D.D.C. 2012) (internal
quotation marks and citations omitted; alteration in original). Thus, this Court will
enforce this arbitration award.
B. Unite Here Is Entitled To Attorneys’ Fees, And The Parties Are
Directed To Meet And Confer Regarding Reasonable Fees
Unite Here has requested that this Court award attorneys’ fees. To be sure, the
LMRA does not explicitly authorize an award of fees in these cases, see Wash. Hosp.
Ctr., 746 F.2d at 1509, and Unite Here does not rely on any potentially applicable
statutory provision in seeking fees. See, e.g., 28 U.S.C. § 1927 (proscribing the
unreasonable and vexatious multiplication of proceedings). Nevertheless, as Unite Here
points out, “courts possess an inherent power to award attorneys’ fees, unless explicitly
forbidden by Congress, when the losing party has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons[.]” Wash. Metro. Area TransitAuth. v. Local 2,
Office and Prof] Emps. Int’l Union, AFL-CIO, 965 F. Supp. 2d 13, 56 (D.D.C. 2013)
(citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 US. 240, 258—59 (1975))
(internal quotation marks omitted). Furthermore, courts may exercise this power if the
“losing party’s actions were ‘frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.’” Id. (quoting Wash. Hosp. Ctr, 746 F.2d at
1510). And “an unjustified refusal to abide by an arbitrator’s award” can, on its own,
justify an award of attorneys’ fees. Int”! Union ofPetroleum and Indus. Workers v. W.
16
Indus. Maint., Inc., 707 F.2d 425, 428 (9th Cir. 1983).
This case clearly calls for the Court’s exercise of that inherent power. Upon
examination of the record and the parties’ arguments, the Court finds that IL Creations
had no basis for refusing to “to follow the decision until a court order affirming the ~
decision.” (Yoo Email at 2.) Moreover, if widespread, that attitude would completely
undermine the purposes of arbitration, as it did here, by forcing the winning party to
spend time, effort, and money seeking judicial enforcement of the arbitrator’s award.
When a party has no good reason to refuse to comply with an arbitrator’s award, it
cannot be permitted to “spin[] out the arbitral process unconscionably through the filing
of meritless suits and appeals.” Dreis & Krump Mfg. Co. v. Int ’1 Ass ’n ofMachim'sts
and Aerospace Workers, Dist. N0. 8, 802 F.2d 247, 255 (7th Cir. 1986). And even a
cursory examination ofthe governing law should have dissuaded IL Creations from
resisting compliance with the arbitrator’s decision, from challenging the arbitrator’s
jurisdiction (for the first time) in the context ofa counterclaim filed in this Court, and
from attacking the award’s scope without any basis for doing so in light of the
extremely deferential applicable standard. Thus, whether or not IL Creations’s conduct
ultimately amounts to subjective bad faith, it is clearly sufficient to entitle Unite Here
to reasonable attorneys’ fees.
IV. CONCLUSION
For the reasons stated in this opinion, Unite Here’s motion to confirm and
enforce the arbitration award will be GRANTED, and IL Creations’s counterclaim will
be DISMISSED. Additionally, as set forth in the accompanying order, judgment will
be entered in Unite Here’s favor with respect to its complaint, and Unite Here is
17
entitled to reasonable attorneys’ fees incurred in this matter, which the parties will
address pursuant to Local Rule 54.2(a).
DATE: December ll, 2015 {Jam/2‘1; Bevan» gar/440w
KETANJI BROWN JACKSON
United States District Judge
18
Creations] shall recognize [Unite Here] as the representative of all [IL Creations]
employees . . . in the classifications listed in Exhibit B, or in classifications called by
different names when performing similar duties” in various IL Creations facilities,
including those in the District of Columbia. (Id. at 5.) Exhibit B to the CBA lists
sixteen different “job classifications” within the bargaining unit of represented
employees, including Head Cook, Cook, Grill Cook, and Junior Cook. (Id. at 32.)
Unite Here and IL Creations also signed a Memorandum of Agreement that supplements
the CBA—titled Appendix 7——that applies only to bargaining—unit employees at IL
Creations’s USDA location and lists similarjob-classification breakdowns as those
listed in Exhibit B. (See id. at 44 (listing, inter alia, “First Cook” and “Cook”
positions).)
The CBA also establishes processes for grievances and arbitration. For example,
the agreement lays out a two—step process for grieving “any dispute arising out of the
expressed terms or conditions contained within th[e] [CBA]” and makes clear that this
process must be followed at the outset. (Id. at 21—22.) First, any grievance must be
“submitted in writing to the General Manager within [ten] calendar days of its
occurrence or ofthe date when the employee or the Union first became aware ofthe
circumstances giving rise to the alleged grievance.” (Id. at 22.) Next, if step one is
insufficient to resolve the matter, the grievance has to be “submitted in writing to the
District Manager . . . within [seven] calendar days after receipt of the [General
Manager’s response].” (Id) The CBA also directs that, if need be, the matter may
subsequently be “referred by [Unite Here] for final decision and determination to an
Court’s electronic filing system automatically assigns.
impartial arbitrator[,]” whose decision would “be final and binding on [IL Creations],
[Unite Here], and [any employees] involved.” (Id.) Finally, these provisions direct that
the arbitrator does not have “the ability or power to in any way modify, change, restrict,
or extend any ofthe terms of [the CBA,]” and that “[flailure to file a grievance or to
proceed to the next step within the prescribed time limits shall constitute a waiver of all
rights to grieve and arbitrate such matters.” (Id. at 22—23.)
The dispute that prompted the instant litigation began in November of 2013.
(See Compl. fl ll; Arbitrator’s Op. & Award, Ex. B to Pl.’s Mot. (“Award”), ECF No.
7-5, at 3.) It is undisputed that, at its USDA location, IL Creations assigned certain
positions “to individuals . . . who were not members of the bargaining unit” (Def.’s
Opp’n at 6; see also P1.’s Mem. at 5), and that these positions all required performing
some type of chef work (see Def.’s Opp’n at 6 (listing the individuals” position titles as
“Asian Chef,” “Chinese Sous Chef,” “Salad Chef,” “Salad Sous Chef,” and “Sous Chef
for the American Department”)). According to Unite Here, this meant non-bargaining-
unit employees were “perform[ing] work reserved for Union-Represented employees”—
i.e., work similar to the duties of the positions listed in Exhibit B and Appendix 7 of the
collective bargaining agreement—in violation of the agreement. (Compl. 1] 11; see also
Award at 3.) Unite Here initiated a grievance process that was unsuccessful (see Award
at 3), and the parties proceeded to arbitration (see Compl. fl 12).
During the evidentiary hearing that the arbitrator held in July of 2014, both
parties presented evidence and arguments in support oftheir positions. Unite Here
reiterated its contention, supported by evidence, that IL Creations had violated the CBA
by permitting non-bargaining-unit employees to perform certainjobs. (See Award at 4—
6.) IL Creations contended, inter alia, that the individuals in the challenged positions
were not, in fact, performing bargaining-unit work; that the present organizational
structure was essential to proper performance of IL Creations’s food-service duties; and
that, in any event, the current setup was not adversely affecting any union workers.
(See Def.’s Opp’n at 6; IL Creations’s Post—Hearing Brief, Ex. D to Pl.’s Reply, ECF
No. 16-2, at 3.) Moreover, and significantly for present purposes, nothing in the post-
hearing brief that IL Creations submitted or in the record before this Court indicates
that IL Creations challenged the arbitrator’s power to render a decision on this dispute.
On July 10, 2015, the arbitrator rendered a decision that largely favored Unite
Here. The arbitrator began by laying out the relevant provisions and position
restrictions contained in the CBA (see Award at 3, 8), and then evaluated each of the
disputed positions in comparison to Exhibit B and Article 7’s job classifications and the
qualities of the individuals actually working in the disputed positions (id. at 9—12).
Ultimately, the arbitrator found that IL Creations had violated the CBA with respect to
four ofthe five disputed positions; that is, that the job descriptions ofthose positions
demanded bargaining-unit work and should have been performed by bargaining-unit
workers. (See id. at 11-13; see also id. at 11 (noting that the qualities required to
perform the positions “approximate[d] the requirements demanded of Head Cooks [and]
Cooks”).) With respect to the fifth position, which was referred to as the “Asian Chef"
position, the arbitrator did not entirely accept IL Creations’s contention that the job
demanded skills “so unique and extraordinary” that it could be performed by non-
bargaining-unit individuals consistent with the CBA, but concluded that the particular
individual who held the position at the time ofthe dispute likely possessed a unique set
of skills that IL Creations could not afford to lose, and thus determined that that
individual should be “grandfather[ed]” into—-i.e., permitted to stay in—the position
until the CBA’s termination date in January of 2016. (Id. at 12.) Furthermore, to
remedy the CBA violations, the arbitrator ordered that the four other positions be
reclassified as “Head Cook” positions; posted as open within fifteen days; and filled
within fifteen more days in accordance with the procedures set forth in the CBA. (Id. at
13—14.)
Less than one week later, IL Creations informed Unite Here in writing that it did
not intend to comply with the arbitrator’s decision and award. (Email from Matthew
Yoo to Emilio Abate on July 16, 2015 (“Yoo Email”), Ex. C to Pl.’s Br., ECF No. 7-6,
at 2 (stating that IL Creations “do[es] not have to follow the decision until a court order
affirming the decision”). Consequently, Unite Here filed the instant lawsuit, invoking a
section ofthe LMRA that grants federal district courts statutory jurisdiction to enforce
labor-arbitration awards. (See Compl. M 4—5); see also United Bhd. ofCarpenters &
Joiners ofAm., AFL-CIO v. Operative Plasterers’ & Cement Masons ’ Int’l Ass ’n ofthe
US. & Can, AFL-CIO, 721 F.3d 678, 686—87 (DC. Cir. 2013) (citing 29 U.S.C.
§ 185(a), (c)). Shortly after filing the complaint, Unite Here submitted a motion to
confirm the arbitration award. (See Pl.’s Mot.) That motion is ripe for the Court’s
review, as is the counterclaim that [L Creations has filed, which requests that this Court
vacate the award. (See Def.’s Countercl.; see also Pl.’s Answer to Def.’s Countercl.,
ECF No. 14.)
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II. LEGAL STANDARDS
The “paramount goal” of the LMRA is “the promotion of labor peace through the
collective efforts of labor and management.” Titanium Metals Corp. v. NLRB, 392 F.3d
439, 447 (DC. Cir. 2004) (internal quotation marks and citation omitted). To this end,
few principles are as well established as the general federal policy preference for “the
peaceful resolution of labor disputes through arbitration”——a process that, when
properly used, helps “resolve industrial strife quickly and inexpensively.” Office and
Prof] Emps. Int’l Union, Local 2 v. Wash. Metro. Area TransitAuth. , 724 F.2d 133,
137 (DC. Cir. 1983) (citation omitted). LMRA case law uniformly recognizes that
judicial second—guessing undercuts the goal of resolving disputes through arbitration.
See United Paperworkers Int ’1 Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36 (1987)
(“The federal policy of settling labor disputes by arbitration would be undermined if
courts had the final say on the merits ofthe awards.” (internal quotation marks and
citation omitted)); see also Teamsters Local Union N0. 6] v. United Parcel Serv., Inc,
272 F.3d 600, 604 (DC. Cir. 2001) (same). Moreover, given that arbitration is an
optional alternative to judicial resolution of disputes—a matter of contract that the
parties negotiate over and jointly accept in the context of reaching a CBA, see AT & T
Techs, Inc. v. Commc ’n Workers, 475 U.S. 643, 648 (1986) (citation omitted)—when
the parties have agreed to arbitration, the law discourages the loser from seeking a
second de novo (or even quasi—de novo) shot at obtaining its desired result in federal
court. See Misco, 484 U.S. at 37 (observing that “it [i]s [the arbitrator’s] judgment and
all that it connotes that was bargained for” and not a court ruling (citation omitted».
Consequently, when a court considers a motion to enforce an arbitration award
under the LMRA, judicial review is “very limited.” Major League Baseball Players
Ass ’n v. Garvey, 532 US. 504, 509 (2001); see also Nat ’l Postal Mail Handlers v. Am.
Postal Workers Union, 589 F.3d 437, 441 (DC. Cir. 2009) (noting the “extraordinarily
deferential” applicable standard). Indeed, under the circumstances such as those at
present, the arbitrator’s award “must be enforced ifthe arbitrator act[ed] within the
confines of his jurisdiction and his award dr[ew] its essence from the parties’ collective
bargaining agreement . . . even when a reviewing court disagrees with the arbitrator’s
judgment on the merits.” Nw. Airlines, Inc. v. Air Line Pilots Ass ’n, Int’l, 808 F.2d 76,
78 (DC. Cir. 1987) (emphasis added)). That is a low bar: the party seeking award
enforcement need only show that the arbitrator “premise[d] his award on his
construction ofthe contract.” Nat ’1 Postal Mail Handlers, 589 F.3d at 441 (alteration
in original) (citation omitted).
Parsing out the narrow set of circumstances in which a federal court may reject a
labor-arbitration award illustrates how much deference is required. One potential basis
for challenging the enforcement of an arbitration award is that the arbitrator lacked
“jurisdiction” over the particular dispute decided. Nw. Airlines, 808 F.2d at 78. This
issue has been called the question of “arbitrability[,]” Madison Hotel v. Hotel and Rest.
Emps., Local 25, AFL-CIO, 144 F.3d 855, 857 n.1 (DC. Cir. 1998) (en bane), and the
basic inquiry is whether or not the parties consented to have the arbitrator decide that
dispute. Notably, an arbitrability challenge can be waived, and thus, a party forfeits the
right to attack an arbitrator’s jurisdiction to hear the dispute by not raising that issue
before the arbitrator. See Howard Univ. v. Metro. Campus Police Officer’s Union, 512
F.3d 716, 720 (DC. Cir. 2008) (“Absent excusable ignorance ofa predicate fact, a party
that does not object to the arbitrator’s jurisdiction during the arbitration may not later
do so in court.”); United Indus. Workers v. Gov’t ofthe Virgin Islands, 987 F.2d 162,
168 (3d Cir. 1993) (“[B]ecause arbitrators derive their authority from the contractual
agreement ofthe parties, a party may waive its right to challenge an arbitrator’s
authority to decide a matter by voluntarily participating in an arbitration and failing to
object . . . .”). Put another way, as far as arbitration is concerned, willing participation
is consent to the arbitrator’s power to resolve the dispute.
Where arbitrability is not an issue and there are no allegations of fraud or
dishonesty on the part of the arbitrator, a court may reject an arbitration award “only if
the arbitrator strays from interpretation and application of the agreement and effectively
dispense[s] his own brand of industrial justice." Nat ’1 Postal Mail Handlers, 589 F.3d
at 441 (alteration in original; emphasis added; internal quotation marks omitted)
(quoting Garvey, 532 U.S. at 509). Even in these cases, courts do not scrutinize an
arbitrator’s decision “on the merits[,]” Garvey, 532 U.S. at 509 (citation omitted),
which means that assertions that the challenged decision “rests on factual errors or
misinterprets the parties’ agreement” are beyond the scope ofjudicial review. Id.; see
also Nat ’1 Postal Mail Handlers, 589 F.3d at 441 (explaining that the only pertinent
question is “whether the arbitrator was “even arguably construing or applying the
contract’” (quoting Garvey, 532 U.S. at 509)); Wash. Hosp. Ctr. v. Serv. Emps. Int’l
Union Local 722, AFL-CIO, 746 F.2d 1503, 1514 (DC. Cir. 1984) (identifying a case in
which the “arbitrator’s words manifest an infidelity to [his] obligation” to base his
award on the essence ofthe CBA as one rare situation in which a court could refuse
enforcement of an arbitration award) (quoting United Steelworkers ofAm. v. Enter.
Wheel & Car Corp, 363 U.S. 593, 597 (1960)).
Occasionally, a party displeased with the arbitrator’s remedy, in contrast to his
reasoning, casts its objection as a claim that the breadth ofthe remedy selected evinces
an impermissible infidelity to the contract. See, e.g., Madison Hotel, 144 F.3d at 857 &
n.l (noting this type of argument). However, such arguments must contend with the
wide berth given to the arbitrator’s power to remedy CBA violations; indeed, it is well
established that “where [the parties] contemplated that the arbitrator will determine
remedies for contract violations that he finds, courts have no authority to disagree with
his honestjudgment in that respect.” Misco, 484 US. at 38. And although the parties
can conceivably limit this background principle of broad discretion, see id. at 41,
questions of whether the contract actually does so are necessarily “question[s] of
contract interpretation that the parties have delegated to the arbitrator” and
consequently receive the same extremely deferential review applicable to an arbitrator’s
interpretation of a CBA. Madison Hotel, 144 F.3d at 857 (internal quotation marks and
citation omitted); id. at 859 (observing that the remedy in that case “f[ell] well within
the bounds ofthis deferential standard”); see also Granite Rock v. Int ’1 Bhd. of
Teamsters, 561 U.S. 287, 298 (2010) (noting that where the parties have “agreed to
arbitrate some matters pursuant to an arbitration clause” any “doubts concerning the
scope of arbitral issues should be resolved in favor of arbitration”) (emphasis in
original) (internal quotation marks and citation omitted).
III. ANALYSIS
Unite Here has received an arbitration award in its favor; yet, 1L Creations has
refused to comply with the arbitrator’s decision absent a court order. Moreover, 1L
Creations has asked this Court to countenance its audacity by vacating the award on the
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