Major League Umpires Ass'n v. American League of Professional Baseball Clubs

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

2-17-2004

Major League Umpires v. Amer League

Precedential or Non-Precedential: Precedential

Docket No. 02-1103

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PRECEDENTIAL THE MAJOR LEAGUE UMPIRES

UNITED STATES COURT OF ASSOCIATION

APPEALS

FOR THE THIRD CIRCUIT v.

THE AMERICAN LEAGUE OF

Nos: 02-1103/1124/1276 PROFESSIONAL BASEBALL CLUBS;

_______________ THE NATIONAL LEAGUE

OF PROFESSIONAL BASEBALL

THE MAJOR LEAGUE UMPIRES CLUBS; OFFICE OF THE

ASSOCIATION COMM ISSIONER OF BASEBALL

v. (D.C. No. 01-cv-02790)

THE AMERICAN LEAGUE OF OFFICE OF THE COMMISSIONER OF

PROFESSIONAL BASEBALL CLUBS; BASEBALL; AMERICAN LEAGUE

THE NATIONAL LEAGUE OF OF PROFESSIONAL BASEBALL

PROFESSIONAL BASEBALL CLUBS; CLUBS; NATIONAL LEAGUE OF

OFFICE OF THE COMMISSIONER OF PROFESSIONAL BASEBALL CLUBS

BASEBALL

v.

(D.C. No. 01-cv-02790)

MAJOR LEAGUE UMPIRES

OFFICE OF THE COMMISSIONER OF ASSOCIATION; WORLD UMPIRES

BASEBALL; AMERICAN LEAGUE ASSOCIATION

OF PROFESSIONAL BASEBALL

CLUBS; NATIONAL LEAGUE OF (D.C. No. 01-cv-02816)

PROFESSIONAL BASEBALL CLUBS

Office of the Commissioner of Baseball;

v. American League of Professional

Baseball Clubs; National League of

MAJOR LEAGUE UMPIRES Professional Baseball Clubs

ASSOCIATION; WORLD UMPIRES Appellants No. 02-1124

ASSOCIATION _______________

(D.C. No. 01-cv-02816)

The Major League Umpires Association,

Appellant No. 02-1103

THE MAJOR LEAGUE UMPIRES Howard L. Ganz, Esquire

ASSOCIATION Neil H. Abramson, Esquire (Argued)

Appellant No. 02-1276 Daniel R. Halem

Proskauer Rose LLP

v. 1585 Broadway

New York, New York 10036

THE AMERICAN LEAGUE OF

PROFESSIONAL BASEBALL CLUBS; Steven R. Wall, Esquire

THE NATIONAL LEAGUE OF Michael S. Burkhardt, Esquire

PROFESSIONAL BASEBALL CLUBS; Megan E. Shafer, Esquire

OFFICE OF THE COMMISSIONER OF Morgan, Lewis & Bockius, LLP

BASEBALL 1701 Market Street

Philadelphia, PA 19103

________________

Counsel for Appellees/Cross-Appellants

Appeal from the United States District

Court for the Eastern District of

Pennsylvania

(D.C. Civil Action Nos. 01-cv-02790, OPINION

01-cv-02816)

District Judge: ROTH, Circuit Judge:

Honorable Harvey Bartle, III

This appeal involves a labor dispute

between Major League Baseball and its

Argued on December 9, 2002 umpires, the majority of whom resigned in

protest over what they viewed as

Before: *BECKER, Chief Judge, ROTH objectionable polic ies w hich th e

and SMITH, Circuit Judges Commissioner of Baseball sought to

__________________ implement during the 1999 season.

* Judge Becker’s term as Chief Although all of the resigning umpires

Judge ended on May 4, 2003. eventually attempted to rescind their letters

of resignation, the events that followed left

(Opinion filed: February 17, 2004) a substantial number of them unemployed.

The twenty-two unemployed umpires

Patrick C. Campbell, Jr., Esquire subsequently filed grievances that were

(Argued) submitted to an arbitrator.

Phillips & Campbell, P.C.

314 North Middletown Road The District Court confirmed the

Lima, PA 19037 Arbitrator’s determination that the dispute

fell within the scope of the arbitration

Counsel for Appellant/Cross Appellee clause of the collective bargaining

agreement (CBA), and further confirmed Commissioner’s Office. Specifically, the

the Arbitrator’s disposition of the MLUA believed that Commissioner Selig

grievances of nineteen of the umpires. In was attempting to implement various new

their appeals, both sides challenge the policies that violated the CBA between the

confirmation of the portions of the Award MLUA and the Leagues. 1

unfavorable to them. In addition, the

Leagues contend that the dispute was not To resolve its disputes with the

arbitrable in the first instance. For the Leagues, the MLUA attempted to force the

reasons stated below, we will affirm the Leagues to negotiate with it over the

judgment of the District Court. proposed new policies by organizing a

mass resignation of its members. The

I. Factual Background MLUA apparently believed that, by

electing to pursue a mass resignation

The Major League Umpires Association strategy as opposed to a strike or other

(MLUA or Association) represents form of work stoppage, it could avoid

umpires employed by both the American violating the no-strike clause contained in

League of Professional Baseball Clubs and the CBA 2 and force the Leagues to bargain

the National League of Professional

Baseball Clubs. The American and 1

National Leagues together comprise what These policies included proposals to

is commonly referred to as Major League (1) evaluate the consistency of individual

Baseball (MLB). Each League has its own umpires’ interpretation of the strike zone;

president, operates as a separate entity, and (2) utilize a computerized “pitch

employs its own umpires. Generally simulator” to improve umpire training;

speaking, the Commissioner of Baseball (3) use MLUA umpires to officiate an

broadly oversees the operation of the exhibition game to be played in Cuba

Leagues and participates in decisions without engaging in separate negotiations

affecting the game as a whole. However, with the MLUA, as was purportedly the

control over the employment and traditional method of addressing issues

discipline of umpires has historically surrounding exhibition games; and (4)

rested with the respective League enlist the aid of club general managers to

presidents. “chart” pitches in an effort to determine

whether umpires were properly

The dispute at issue arose during interpreting the------------------ strike

the 1999 baseball season over what the zone. The MLUA viewed these

MLUA perceived as an attempt by the proposals as violations of the existing

Commissioner of Baseball, Allan H. CBA.

“Bud” Selig, to strip the League presidents 2

The no-strike clause of Article XIX

of supervisory power over umpires and to

of the CBA states, in relevant part, that

c e n t r al i z e t ha t p o we r in th e

“the Association agrees that there shall

3

because the voluntary resignation of its addition, each of the fifty-seven resigning

members would trigger the Leagues’ umpires executed a personal services

obligation to pay the resigning umpires agreement with the newly created

approximately $15 million in severance Professional Umpire Services, Inc. These

compensation. Fifty-seven of the MLUA’s agreements stated, in relevant part, that the

sixty-eight members agreed to participate umpire would render services “exclusively

in the mass resignation; twenty-three from for the Corporation and/or for the Person

the American League and thirty-four from with whom the Corporation agrees to

the National League. On July 15, 1999, provide Umpire Services.”

each of the resigning umpires sent a letter

to his respective League president stating Articles of incorporation were filed

that he resigned his position effective for Professional Umpire Services on July

September 2, 1999. Umpires with more 9, 1999, but the company never

than ten years on the job also demanded countersigned the personal services

severance pay due under the CBA as a agreements or conducted any business. It

result of voluntary termination.3 In appears the MLUA planned to use the

company as a means of providing the

Leagues with umpiring services in the

be no strike nor other concerted work event that the labor dispute was not

stoppage during the period of this resolved by the time the resignations took

Agreement and further that it will use its effect on September 2.

best efforts to cause each umpire

faithfully to carry out their obligations as On July 22, Commissioner Selig

employees.” met with American League President Gene

3 Budig and National League President

The relevant portion of each letter

Leon ard C oleman in Milwaukee,

stated as follows:

Wisconsin, in an effort to determine how

best to respond to the resignations. After

Effective September 2,

some discussion, the Leagues decided not

1999, I hereby resign from

to negotiate with the MLUA.

my employment from the

[American or National]

There are conflicting versions of

League pursuant to Article

what transpired at this meeting. The

VIII.D of the Basic

Agreement between the

American League of

Professional Baseball Association dated January

Clubs, the National League 1, 1995. [W here

of Professional Baseball applicable:] I hereby

Clubs and the Major demand my voluntary

League Umpires termination pay.

4

MLUA contends that there was no Pennsylvania seeking to establish the

immediate threat to the continuing resigning umpires’ rights to termination

operation of MLB, as the resignations did pay and benefits.

not become effective until several weeks

after the meeting. It further argues that Through a combination of new

Commissioner Selig essentially forced the hires and resignation rescissions, the

League presidents to begin hiring American League returned to full staff by

replacement umpires in an effort to July 26. In contrast, relatively few

manufacture a claim of detrimental National League umpires had rescinded

reliance and to break the union. The their resignations as of that date, and

Leagues counter that they viewed the mass National League President Coleman hired

resignation strategy as a violation of the five more replacement umpires. On July

CBA’s “no-strike” clause, and therefore 27, the remaining thirty-two National

began hiring replacement umpires to League and six 5 American League umpires

ensure the continued operation of MLB attempted to rescind their resignations en

during the upcoming League playoffs and masse. However, because of the new hires

World Series. and previous resignation rescissions, only

nineteen National League positions

By the end of the day on July 22, remained open. As stated above, all of the

the Leagues had hired a total of twenty American League positions had been filled

replacement umpires (eight in the National by that date

League and twelve in the American

League).4 As a result, it soon became clear Because he had no positions left to

to MLUA members that the mass fill, American League President Budig

resignation strategy was a failure. Many simply refused to allow any of the final six

began to rescind their letters of American League umpires to rescind their

resignation. Despite the capitulation of resignations.6 National League President

some of its members, however, the MLUA

continued to exert pressure on the 5

Leagues. On July 23, it filed a declaratory The District Court listed the names of

judgment action in the Eastern District of seven AL umpires who tried to rescind

on July 27, but the Arbitrator put the

number at six. Again, we have adopted

the Arbitrator’s number.

4

The District Court puts the number at

6

17 (8 in the NL and 9 in the AL). These umpires received a letter from

However, the Arbitrator found 12 American League President Budig

replacements in the AL, and thus 20 stating, in relevant part:

overall. As the Arbitrator was the fact-

finder in this case, we have adopted his On July 15, 1999, I

number. received from your union,

5

Coleman faced a more difficult situation,

as he was forced to determine which of the

remaining thirty-two National League

the Major League

umpires would be permitted to rescind

Umpires’

their resignations. In order to make this

Association, a letter

determination, he invoked Article VIII A

from you dated July

of the CBA, which provides in its second

14, 1999, resigning

paragraph that “[a]ll umpires shall be

from your

selected or retained in the discretion of the

employment as an

League Presidents on the basis of merit

umpire with the

and the skill of the umpire to perform to

American League. I

Major League standards.” Applying this

deeply regret that

provision at least in part, Coleman selected

you decided to take

nineteen umpires from the thirty-two and

part in this

permitted those nineteen to rescind their

concerted

letters of resignation. Coleman then

resignation plan

accepted the resignations of the remaining

instigated by the

thirteen National League umpires.

Major League

Umpires’

By the end of this imbroglio,

Association.

twenty-two of the fifty-seven MLUA

However, you have

members who participated in the mass

left me with no

resignation scheme, nearly one-third of the

choice but to accept

Association’s total membership, were

your resignation and

unemployed (nine from the American

to fill the vacancy

that your resignation

has created along

with the other submitted by an

vacancies that were American League

created by this mass umpire that was not

resignation strategy. rescinded.

The hiring process

is now complete. Thank you for your service

The American to the American League

League has hired a and I personally wish you

permanent employee the best in your future

to fill the vacancy endeavors.

created by your

resignation and each

resignation

6

League and thirteen from the National proceedings, the Arbitrator issued his

League). All twenty-two of these umpires Opinion and Award on M ay 11, 2001. The

filed grievances under the CBA. Arbitrator sustained the grievances and

ordered the reinstatement of two American

II. Procedural History League umpires (Coble and Kosc), and

seven National League umpires (Darling,

The MLUA filed its Demand for Hohn, Tata, Pulli, Poncino, West, and

Arbitration of the grievances on August Vanover) with full back pay and benefits.

27, 1999. On August 30, the MLUA It denied the grievances of all of the

sought an injunction from the United remaining American and National League

States District Court for the Eastern umpires. Both sides subsequently filed

District of Pennsylvania to prevent the actions in the Eastern District of

Leagues from dismissing the twenty-two Pennsylvania seeking to vacate the

umpires whose resignations had been portions of the Award unfavorable to

accepted and were due to take effect on them. In addition, the Leagues challenged

September 2. The District Court held a the Arbitrator’s denial of their motion to

hearing on September 1. Following this dismiss the dispute as non-arbitrable.

hearin g , the parties executed a

Memorandum of Understanding stating

that the MLUA would withdraw its The District Court held that the

complaint and that the parties would Leagues had properly preserved their

submit the matter to an arbitrator. The objection to arbitrability. It nevertheless

Memorandum of Understanding also confirmed the Arbitrator’s conclusion that

permitted either side to “raise in such the dispute was arbitrable. As for the

arbitration whatever procedural and merits of the parties’ arguments, the

substantive arbitrability arguments . . . the District Court confirmed the Arbitrator’s

parties may have.” conclusion that the Leagues were entitled

to hire replacement umpires in reliance on

In November 1999, the Leagues, the letters of resignation submitted by the

contending that the dispute at issue did not grievants, as well as confirming his

fall within the scope of the CBA’s determination that American League

arbitration provision, moved to dismiss the President Budig was not required to accept

grievances. The Arbitrator denied this the six resignation rescissions submitted

motion on November 26, 1999. Both sides on July 27 in view of the fact that the

were represented by counsel during the American League was fully staffed by that

arbitration proceedings, which included date.

seventeen days of testimony over the

course of approximately one year. The District Court further

confirmed the Arbitrator’s application of

Following completion of the the Article VIII “merit and skill” criteria to

7

the determinations made with respect to all III. Jurisdiction and Standard of

but three of the National League umpires, Review

and his decision, following this

application, to require the National League The District Court reviewed the

to reinstate seven umpires (Darling, Hohn, Arbitrator’s Award pursuant to § 301 of

Tata, Pulli, Poncino, West, and Vanover) the Labor Management Relations Act of

who satisfied this criteria despite the fact 1947, 29 U.S.C. § 185. We have

that all National League positions had jurisdiction over the parties’ cross-appeals

been filled. Finally, the District Court of the District Court’s final order pursuant

confirmed the Arbitrator’s conclusion that to 28 U.S.C. § 1291. Our review of the

three additional National League umpires District Court’s ruling is plenary, and we

(Davidson, Gregg, and Hallion) need not apply the same test applied by the District

be reinstated because they failed to satisfy Court. Pennsylvania Power Co. v. Local

the Article VIII merit and skill criteria.7 Union No. 272 of the Int’l Bhd. of Elec.

On appeal, both sides contend that the Workers, AFL-CIO (Pennsylvania Power

District Court erred in confirming the II), 276 F.3d 174, 178 (3d Cir. 2001).

portions of the Award unfavorable to

them. Additionally, the Leagues assert IV. Discussion

that the dispute at issue does not fall

within the scope of the CBA’s arbitration A. Scope of Judicial Review of

provision so that it was not arbitrable in Arbitration Awards

the first instance.

We begin our analysis by

examining the general legal principles

governing federal courts’ review of

arbitration awards. The first step in any

such review involves an examination of

the sources of the arbitrator’s authority.

7 See Matteson v. Ryder System, Inc., 99

The District Court also confirmed the

F.3d 108, 112 (3d Cir. 1996) (“Under the

Award as to two American League

Federal Arbitration Act, a district court

umpires (Coble and Kosc) and vacated

may vacate an arbitration award if, inter

the portion of the Award that upheld the

alia, ‘the arbitrators exceeded their powers,

National League’s discharge of three

or so imperfectly executed them that a

other umpires (Nauert, Dreckman, and

mutual, final, and definite award upon the

Holbrook) with less than five years’

subject matter submitted was not made.’”)

experience. All five initially appealed

(quoting 9 U.S.C. § 10(a)(4)). Simply

this ruling, but have since settled their

stated, “an arbitrator may not venture

dispute. Thus, their claims are no longer

beyond the bounds of his or her authority,”

before us, and we do not address them

which is defined not only by the terms of

here.

8

the CBA, but also by the scope of the review the arbitrator’s

issues submitted by the parties. Id. Thus, decision on the merits

“[i]t is the responsibility of the arbitrator in despite allegations that the

the first instance to interpret the scope of decision rests on factual

the parties’ submission, but it is within the errors or misinterprets the

courts’ province to review an arbitrator’s parties’ agreement . . . .

interpretation.” Id. at 113. When an arbitrator resolves

disputes regard ing th e

In conducting this review, “‘the application of a contract,

deference that is accorded to an and no dishonesty is alleged,

arbitrator’s interpretation of the collective the arbitrator’s

bargaining agreement should also be ‘improvident, even silly,

accorded to an arbitrator’s interpretation of factf indin g ’ d o e s n ot

the issue submitted.’” Id. (quoting Mobil provide a basis for a

Oil Corp. v. Independent Oil Workers reviewing court to refuse to

Union, 679 F.2d 299, 302 (3d Cir. 1982)). enforce the award.

This is so because (1) “a more searching

judicial review of submissions . . . would Major League Baseball Players Ass’n v.

undermine the congressional policy of Garvey, 532 U.S. 504, 509 (2001) (internal

promoting speedy, efficie nt, and citations and quotations omitted). We

i n e x p e n s iv e resolu t i o n o f l a b or should uphold an arbitration award that

grievances”; (2) “interpretation of a “draws its essence from the collective

submission must often occur in the context bargaining agreement” because “the

of the collective bargaining agreement parties to the collective bargaining

itself ,” thereby result i n g in an agreement ‘bargained for’ a procedure in

in c o n si stency if the arbitrator ’ s which an arbitrator would interpret the

interpretation of the CBA receives agreement.” National Ass’n of Letter

deference but his or her determination of Carriers, AFL-CIO v. United States Postal

the scope of the submission does not; and Serv., 272 F.3d 182, 185 (3d Cir. 2001)

(3) “requiring courts to engage in a close (noting that a court should uphold an

examination of the submissions to arbitration award) (citing Eastern Assoc.

arbitrators would put a considerable strain Coal Corp. v. United Mine Workers, 531

on judicial resources.” Id. (citing Mobil U.S. 57, 62 (2000)); United Indus.

Oil, 679 F.2d at 302). Workers v. Gov’t of the V.I., 987 F.2d

162, 170 (3d Cir. 1993) (holding that a

Our role in reviewing the outcome court may not “overrule an arbitration

of the arbitration proceedings is not to decision because it finds an error of law”);

correct factual or legal errors made by an Tanoma Mining Co. v. Local Union No.

arbitrator. 1269, United Mine Workers of Am., 896

Courts are not authorized to F.2d 745, 747 (3d Cir. 1990) (noting that,

9

because “the parties have bargained for the as the [arbitration] panel did and

arbitrator’s decision, ‘it is the arbitrator’s reexamine the evidence under the guise of

view of the facts and of the meaning of the determining whether the arbitrators

contract that they have agreed to accept. exceeded their powers.”). Rather,

An award may fairly be said to “draw[] its arbitration awards enjoy a strong

essence from the bargaining agreement if presumption of correctness that may be

the interpretation can in any rational way overcome only in certain limited

be derived from the agreement, viewed in circumstances, as described above.

light of its language, its context, and any

other indicia of the parties’ intention.” With this standard in mind, we turn

United Transportation Union Local 1589, now to the specific claims at issue here.

51 F.3d at 379-80 (internal quotations

omitted). B. Arbitrability

Moreover, an award may be vacated In addressing the threshold question

if the arbitrator demonstrates manifest of arbitrability, we first must determine

disregard for the CBA. See Newark whether the CBA empowers the Arbitrator

Morning Ledger Co. v. Newark to settle questions of substantive

Typographical Union Local, 797 F.2d 162, arbitrability, i.e., “whether a particular

165 (3d Cir. 1986). Manifest disregard for dispute is subject to the parties’

the CBA is established when the contractual arbitration provision(s).” Bell

arbitrator’s award is “‘totally unsupported A t l a n t i c -P e n n s y lv a n i a , I n c . v .

by principles of contract construction.’” Communications Workers of Am., 164

Exxon Shipping Co. v. Exxon Seamen’s F.3d 197, 201 (3d Cir. 1999). As we have

Union, 993 F.2d 357, 360 (3d Cir. 1993) previously held, “[a]bsent a clear

(quoting News Am. Publications v. expression to the contrary in the parties’

Newark Typographical Union, Local 103, c ontr a ct, subs tanti ve arb itrability

918 F.2d 21, 24 (3d Cir. 1990)). determinations are to be made by a court

and not an arbitrator.” Id. at 200.

In reviewing an arbitration award, Therefore, contract language submitting

courts “do not sit to hear claims of factual the issue of arbitrability to the arbitrator

or legal error by an arbitrator as an “must be clear and unmistakable.”

appellate court does in reviewing decisions PaineWebber Inc. v. Hofmann, 984 F.2d

of lower courts.” Tanoma Mining Co., 896 1372, 1379 n.4 (3d Cir. 1993).

F.2d at 747 (citing United Paperworkers

Int’l Union v. Misco, 484 U.S. 29, 37-38 Here, however, the Leagues

(1987)); see also Mutual Fire, Marine & conceded before the District Court that the

Inland Ins. Co. v. Norad Reinsurance Co., issue of arbitrability was properly

868 F.2d 52, 56 (3d Cir. 1989) (concluding

that “[i]t is not this Court’s role . . . to sit

10

submitted to the Arbitrator. 8 We do not therefore have to decide whether it was

proper for the Arbitrator to determine

arbitrability, merely whether he ignored

8 the plain language of the CBA in his

In response to the District Court’s

determination of arbitrability. See

query about its standard of review of the

National Ass’n of Letter Carriers, 272 F.3d

arbitrator’s decision on arbitrability,

at 186. In doing so, we are obliged to give

counsel for the Major Leagues

that decision “the same deference due an

responded:

arbitrator’s decision on the merits.”

United Indus. Workers, 987 F.2d at 167.

MR. GANZ: If there is no

Thus, the Arbitrator’s determination of

rational – there has to be a

arbitrability must be affirmed “as long as it

rational basis for the

‘draws its essence’ from the collective

arbitrator’s determination,

bargaining agreement.” Pennsylvania

that he had authority, and

Power Co. v. Local Union # 272 of the

that basis must draw its

Int’l Bhd. of Elec. Workers, AFL-CIO,

essence from the collective

886 F.2d 46, 48 (3d Cir. 1989). As noted

bargaining agreement.

above, this requires only that the

Arbitrator’s interpretation of the CBA be

THE COURT: Okay. So

rationally “derived from the agreement,

there has to be a rational

viewed in light of its language, its context,

basis for the arbitrator’s

and any other indicia of the parties

decision that this matter

intention.” United Transportation Union

was subject to arbitration.

Local 1589, 51 F.3d at 380 (citations and

internal quotations omitted).

MR. GANZ: Correct,

Your Honor.

In presenting the issue to the

Arbitrator in their motion to dismiss, the

THE COURT: Okay. So it

Leagues contended that the dispute was

isn’t just my reading of the

not arbitrable because Article VIII of the

agreement, I have to give

CBA gives the League Presidents the

deference to the arbitrator

authority, following a hearing, to issue a

to that extent?

“final and binding” decision regarding the

termination of an umpire.9 The MLUA on

MR. GANZ: That’s

correct. It was for the

arbitrator in the first 27, 2001, at pp. 17-18.

instance, certainly, and you

9

to review that. . . . Article VIII provides in relevant part

in Section A, Tenure:

Transcript of Oral Argument, November

11

the other hand maintained that the dispute fell within the broad scope of the general

arbitration provision contained in Article

XV of the CBA.10

[1] In the event an umpire

Following his review of the text of

with five or more years of

Articles VIII and XV, the Arbitrator

service is discharged by a

denied the Leagues’ motion to dismiss,

League President, the

ruling instead that, although the first

umpire and the

paragraph of Article VIII A vested

representative of the

substantial authority in the League

Association shall be

presidents regarding the termination of

entitled to an explanation

umpires, the second paragraph placed two

of the reasons for his

specific limitations on that authority. First,

discharge and the umpire

this “substantial authority” was “limited to

shall be entitled at his

issues concerning the ‘merit and skill of

request to hearing before

the umpire to perform to Major League

the League President at

standards’,” and, second, it had to be

which time the discharge

exercised without “discrimination or

shall be subject to full

review and re-examination

by the League president.

10

The decision of the League Article XV provides, in relevant

President after such part:

hearing shall be final and

binding. In the event of a dispute

concerning a claimed

[2] All umpires shall be violation of the provisions

selected or retained in the of this Agreement by either

discretion of the League party thereto the matter

Presidents on the basis of shall be referred to the

merit and the skill of the League President involved

umpire to perform to Major and a representative of the

League standards. With Association; and if an

respect to all such members agreement is not reached

of the regular staff, there by these two individuals

shall be no discrimination within ten days the matter

or recrimination on the part shall be referred to an

of any party to this arbitrator mutually agreed

Agreement. upon as sole neutral

arbitrator to finally

(paragraph numbering added). determine the matter.

12

recrimination.” In view of this of Article VIII makes no mention of

determination, the Arbitrator concluded arbitration or of Article XV, the Arbitrator

that, “to the extent that the Presidents should have concluded that there was no

terminated or accepted the resignations of agreement to arbitrate the dispute at issue

the 22 umpire grievants, as the case may here.

be, the issue of whether this decision was

an abuse of discretion or was performed in We have reviewed the applicable

a discriminatory or recriminatory manner, provisions of the CBA in light of the

is subject to arbitration.” Rulings arguments of the parties and see no basis

Concerning Employer’s Motion to Dismiss for vacating the Arbitrator’s finding of

et al. (Rulings) at 3. In confirming the arbitrability. Although we may question

Arbitrator’s decision, the District Court the clarity of the Arbitrator’s ruling with

held that, “because the parties contracted respect to this issue, we do not conclude

to arbitrate disputes concerning any from the record before us that the

‘claimed violation’ of the Agreement, and Arbitrator considered the issue before him

because the current dispute concerning the to be a simple Article VIII termination of

selection or retention of umpires is such a the umpires. Rather, in rejecting the

‘claimed violation,’ the arbitrator properly Leagues’ motion to dismiss, the Arbitrator

exercised jurisdiction.” Major League found the arbitrable issue to be one

Umpires Ass’n v. American League of involving a determination of relative

Professional Baseball Clubs, No. 01-2790, “merit and skill” and as well as the

slip op. at 12 (E.D.Pa . Dec. 13, 2001). possible abuse of discretion or exercise of

discriminatory or recriminatory animus in

On appeal, the Leagues contend the respective League Presid ents’

that the issue sought to be arbitrated by the decisions regarding the “terminat[ion] or

MLUA was whether the Leagues violated accept[ance] [of] the resignations of the 22

the CBA by “terminating” the twenty-two umpire grievants.” Rulings at 3. The

umpires in question. They further assert reference by the Arbitrator to “merit and

that the CBA does not provide for skill” and to “disc rim inato ry or

arbitration of this issue, and that it recriminatory animus” brings us down to

therefore is not arbitrable. Instead, they the second paragraph of Section A of

argue that, in order to be arbitrable, a Article VIII. It is, however, the first

dispute must “concern[] a claimed paragraph of the Section A that speaks of

violation of the provisions of th[e] “final and binding” review by the League

[CBA].” (quoting Article XV of the CBA). President of umpire discharges.

The Leagues urged that Articles VIII and

XV contain two mutually exclusive From the foregoing, we conclude

dispute resolution mechanisms; because that the Arbitrator’s initial finding of

the MLUA relied primarily upon Article arbitrability was premised on alleged

VIII and the dispute resolution provision violations of the CBA, involving selection

13

of umpire candidates which selection did consideration of the arbitrability issue in

not involve merit and skill, and further the Arbitrator’s Award. The Arbitrator

premised on the Arbitrator’s determination quoted Article XV, the CBA’s general

that he must consider whether there had dispute resolution provision, for the

been discriminatory or recriminatory proposition that “[t]he dispute resolution

animus. He determined that such types of language of the agreement gives me the

violations did not fall under the limited jurisdiction to resolve disputes concerning

review provision of the first paragraph of ‘claimed violations of the provisions of

Article VIII A. By default, then they this agreement,’”and then noted that,

would fall within the broad scope of the “[w]hile there may be conflicting views

general dispute resolution mechanism concerning the propriety of the actions

contained in Article XV. Thus, the taken by both sides in this case, the sole

Arbitrator’s finding of arbitrability was not question in this case concerns whether the

conditioned upon a finding that the reasons actions taken were appropriate under the

for the terminations required explanation terms of the collective bargaining

prior to the exercise of the final and agreement.” Opinion and Award at 71. In

binding review of the League Presidents, this reference to the “terms” of the CBA,

as provided for in the first paragraph of the conclusion is evident that the

Article VIII A. The review required from Arbitrator is considering not just the

the nature of the alleged violations would League Presidents’ discharge review

encompass more than the “explanation of authority of the first paragraph of Article

the reasons for . . . discharge” set out there VIII A but also the “no discrimination or

and would therefore expand beyond the recrimination” language of the second

bounds of the “final and binding” authority paragraph. From this it follows that the

of the League Presidents provided for in Arbitrator rationally determined that his

that first paragraph. In sum, we conclude consideration of whether there had been a

that the Arbitrator did not ignore the plain violation of the CBA extended beyond a

language of the CBA, see National Ass’n review of the reasons for discharge of an

of Letter Carriers, 272 F.3d at 186, or umpire by the League President as set out

demonstrate manifest disregard for the in the first paragraph of Article VIII A.

CBA, see Newark Morning Ledger Co.,

797 F.2d at 165, when he determined that We find further reinforcement of

violations of the provisions of the second this conclusion in the fact that the

paragraph of Article VIII A were covered Arbitrator, in his Award, determined that

by the arbitrability provisions of Article the grievant umpires had resigned their

XV rather than by the specific review of positions, rather than having been

discharges provided for in the preceding terminated. For this reason, the Arbitrator

first paragraph of Article VIII A. concluded that the “limitations” for

terminated umpires found in Article VIII

This conclusion is reinforced by the A did not apply. We presume that in

14

referring to the “limitations” for Turning then to the merits of the

terminated umpires of Article VIII A and underlying dispute, we begin with the

their inapplicability to the case before him, Arbitrator’s conclusion that the actions of

the Arbitrator had in mind Article VIII A’s the umpires amounted to actual

“final and binding” review of umpire resignations, as opposed to a mere threat

discharges by League Presidents, found in or notification of future resignations, so

the first paragraph. that the Leagues acted properly in hiring

replacements. The MLUA challenges this

As noted above, an arb itrator’s determination, contending that this ruling

finding of arbitrability draws its essence amounted to manifest disregard of the law,

from the CBA if it can be rationally was not supported by the record, and failed

“derived from the agreement, viewed in to draw its essence from the CBA. The

light of its language, its context, and any MLUA urges that, because no umpire

other indicia of the parties’ intention.” actually relinquished his position prior to

United Transportation Union Local 1589, September 2, no umpire can be said to

51 F.3d at 379-80 (internal quotations have “resigned.” Thus, because the

omitted). Here, the Arbitrator’s denial of umpires did not resign, the Leagues’

the Leagues’ motion to dismiss was based refusal to accept the umpires’ rescissions

on a determination that the question of their resignations amounted to a

whether there had been an abuse of discharge in violation of the CBA. The

discretion and discrimination and MLUA further claims that there is no

retaliation was not constrained by the evidence in the record to support the

limitations of the first paragraph of Article Leagues’ claims of detrimental reliance.

VIII A. We conclude that such a

determination can rationally be derived In response, the Leagues justify

from the CBA. their decision to begin hiring replacement

umpires for the following reasons: (1) the

Whether, if faced with the initial inclusion of the phrase “I hereby resign my

determination, we would have come to the employment” in each of the resignation

same decision is immaterial. There is no letters at issue; (2) the demand for

basis from which to conclude that the “voluntary termination pay” by each

Arbitrator’s finding of arbitrability fails to umpire with more than ten years’ service;

draw its essence from the CBA, as it may (3) MLUA General Counsel Richard

logically be derived from the text of that Phillips’ statements to the media, which

agreement. See Matteson, 99 F.3d at 113. unequivocally indicated that the MLUA

Thus, we will affirm the District Court’s members had resigned and would not

confirmation of the Award with respect to

arbitrability.

C. Detrimental Reliance

15

rescind their resignations;11 (4) the Leagues were justified in hiring

execution by each resigning umpire of an replacement umpires.

employment contract with Professional

Umpire Services, Inc.; and (5) the filing by We have reviewed the record below

the MLUA of an action in the Eastern and find no basis for disturbing the award

District of Pennsylvania seeking to with respect to this issue. Under the

establish the Leagues’ obligation to make standards of review of arbitration

the severance payments required by the decisions set out above in Part IV A, the

CBA in the event of voluntary termination. Arbitrator’s conclusion that the umpires

The Leagues assert that on this record the resigned and that the Leagues were

Arbitrator properly determined that the justified in hiring replacement umpires is

well supported by the facts of record and

for that reason there is no basis for

11 reversing it. See Tanoma Mining Co., 896

The following exchange between

F.2d at 748. Simply put, the Arbitrator

Phillips and an interviewer from the

considered the MLUA’s arguments and,

television sports channel “ESPN”

based on the facts and his interpretation of

provides an example of such statements:

the CBA and applicable law, found that

the letters constituted resignations rather

Phillips: There’s not a

than notices of intent to resign. He

threat to resign. They have resigned;

therefore concluded that the Leagues acted

they have formally resigned their

appropriately by hiring replacements in

positions. It’s not a threat. And they

reliance upon these representations.

have all signed contracts with a

professional services corporation. And,

The District Court found that this

the first thing that they will do is they

conclusion “was not a manifest error of

will receive the in excess of $15 million

law.” Slip op. at 13. We agree. As noted

in severance that baseball owes them.

above, because “the parties have bargained

for the arbitrator’s decision, it is the

Interviewer: Can the

arbitrator’s view of the facts and of the

resignations be rescinded, and - - -

meaning of the contract that they have

agreed to accept.” Tanoma Mining Co.,

Phillips: No.

896 F.2d at 747 (internal quotation

omitted). Thus, we will affirm the District

Interviewer: Can there be

Court’s confirmation of the Award with

peace between the umpires and major

respect to this issue.

league baseball achieved over the next

couple of weeks in some kind of

negotiation?

Phillips: No.

16

D. The Arbitrator’s Application of current “merit and skill” language was

Article VIII’s “Merit and Skill” Criteria inserted into the CBA as a result of the

1979 incident for the express purpose of

The MLUA next challenges the preventing the Leagues from trimming the

Arbitrator’s determination concerning the umpire ranks by taking action against

standards that National League President those who participate in work stoppages.

Coleman was required to apply in making

his staffing decisions following the In light of the history of the merit

rescission of the remaining resignations on and skill provision, and because National

July 27. Specifically, in accordance with League President Coleman admitted

the MLUA’s position that the letters during his testimony before the Arbitrator

constituted notices of intent to resign that he never applied the merit and skill

rather than actual resignations, the MLUA criteria to either those umpires who never

contends that the combination of new hires resigned or those newly hired, the MLUA

and resignation rescissions resulted in a argues that his actions violated the plain

situation in which the National League language of the CBA. Further, because

was overstaffed and National League American League President Budig never

President Coleman, in determining whom applied the merit and skill criteria in the

to retain, should have compared the “merit first instance, the Association asserts that

and skill” of the rescinding umpires not he too violated the CBA and that the

only as between those umpires but also as Award, which the MLUA contends

to the “merit and skill” of the new hires effectively allows each League to employ

and that of those umpires who had never a different decision-making process, fails

resigned. The MLUA urges that the to draw its essence from the CBA.

Arbitrator’s countenance of Coleman’s

failure to do so results in a decision which We again reject the MLUA’s

fails to draw its essence from the CBA. arguments. As a preliminary matter, in

view of the unequivocal no-strike clause

In support of this argument, the contained in the CBA, we find troubling

MLUA analogizes the present situation to the assertion that the merit and skill

the one that existed in 1979 when its criteria was inserted in order to protect

members refused to execute their striking umpires. Indeed, if we were to

individual employment contracts at the read Article XIX of the CBA as

beginning of the baseball season despite prohibiting strikes while Article VIII

the existence of a no-strike clause. There, nevertheless protects striking umpires, we

the striking umpires were permitted to would have a very tortured interpretation

return to work once the situation was of the contract.

resolved. This resulted in overstaffing, as

replacement umpires had been hired in the Moreover, even if there were some

meantime. The MLUA claims that the arguable merit to the M LUA’s attempt to

17

analogize this situation to the job action Arbitrator sustain ed so me o f the

taken by its members in 1979, the grievances and denied others. He ordered

Arbitrator rejected its argument with the reinstatement of National League

respect to this issue. See Opinion and Umpires Darling, Hohn, Poncino, Pulli,

Award at 88-89. Instead, he found that, Tata, West, and Vanover (the Darling

unlike the situation that existed in 1979, Group), but denied the grievances and

the 1999 work stoppage at issue here upheld Coleman’s acceptance of the

involved: (1) the actual severing of the resignations of Umpires Davidson, Gregg,

em p l o y m e n t r e l a ti o n s h ip thr ough and Hallion, (the Davidson Group), as well

resignation; (2) the hiring of permanent as Umpires Nauert, Dreckman, and

replacements; and (3) no decision by the Holbrook (the Nauert Group). The

League presidents to increase the size of Leagues now contend that the District

their respective umpire staffs. Id. This Court erred in confirming the Arbitrator’s

conclusion does not constitute a manifest construction and application of Article

disregard for either the CBA or the VIII in making these determinations.

applicable law. See Neward Morning

Ledger, Co., 797 F.2d at 165. Thus, we Because Coleman elected not to

see no basis for disturbing the District exercise his discretion to increase the size

Court’s confirmation of this aspect of the of the National League staff, he was forced

Award. to find a method to determine which

nineteen umpires would be permitted to

E. The Arbitrator’s Resolution of the rescind their resignations and which

Claims of Individual Umpires thirteen would have their resignations

accepted. In so doing, he sought input

As discussed above, by the time the from the MLUA’s counsel, who simply

remaining thirty-two National League insisted that all decisions be made on the

umpires attempted to rescind their basis of seniority, which would have

resignations on July 27, National League guaranteed that all resigning MLUA

President Coleman, through new hires and members would be rehired and the new

prior resignation rescissions, had already replacement umpires released. Coleman

filled nineteen of the thirty-two vacant rejected this suggestion.

positions. Because of the limited

vacancies, he had to accept the Without any other guidance for

resignations of thirteen of the National making such determinations, Coleman

League umpires. He chose to accept the decided to use the merit and skill criteria

resignations of the following umpires: from Article VIII A of the CBA to select

Darling, Hohn, Poncino, Pulli, West, Tata,

Vanover, Davidson, Gregg, Hallion,

Nauert, Dreckman, and Holbrook, all of

whom filed grievances. In his Award, the

18

which resignation rescissions to accept. 12 ruling on the Darling Group was the

Arbitrator’s belief that Coleman’s decision

As stated above, in applying this to reject their rescissions was based solely

merit and skill provision to the thirty-two on the number of available positions, not

National League umpires who attempted to on merit or skill, and that this ran afoul of

rescind their resignations on July 27, the terms of Article VIII. Although the

C o l e m a n accepted only nineteen Arbitrator concluded that the League

rescissions. The thirteen National League President had substantial discretion in

umpires not permitted to rescind fell into employment decisions regarding the tenure

either the Darling, Davidson, or Nauert of umpires, he found that Article VIII

Groups. limited this discretion by requiring the

League President’s decision to be based on

With respect to the Darling and the “merit and skill” to perform to Major

Nauert Groups, Coleman refused to allow League standards. The Arbitrator

them to rescind their resignations because therefore concluded that the discretion

of the limited number of unfilled positions. exercised by the League presidents “is not

However, in refusing to allow the limitless,” and that such decisions “must

Davidson Group to rescind their be one[s] that can be reasonably articulated

resignations, Coleman articulated various and related to issues of merit and skill and

reasons why he believed each member of not arbitrary or capricious.” Opinion and

the group lacked the merit and skill Award at 90. The Arbitrator therefore

necessary to perform to Major League concluded:

standards.

In reviewing these

After reviewing Coleman’s explanations in light of the

decisions to refuse reinstatement, the broad discretion given to

Arbitrator upheld him on the Davidson and League Presidents, it is this

Nauert groups but reversed Coleman’s Arbitrator’s view that Mr.

refusal to rescind the Darling Group’s Coleman must articulate an

resignations. The primary basis for the explanation that has some

relationship to the merit and

skill of that Umpire as well

12 as the other factors that he

The relevant language in Article

considered. If Mr. Coleman

VIII A, paragraph 2, is “[a]ll umpires

was unable to articulate a

shall be selected or retained in the

basis, then I must conclude

discretion of the League Presidents on

that he abused his

the basis of merit and the skill of the

discretion. The mere

umpire to perform to Major League

statement that he had to find

standards.” See footnote 9 for the full

the “numbers” required to

text of Article VIII A.

19

fill the positions is an his authority and failed to draw its essence

arbitrary consideration and from the CBA. Simply stated, they allege

must be overruled. the Arbitrator impermissibly created his

own standard of review for merit and skill

Id. (footnote omitted). determinations out of whole cloth. In

response, the MLUA contends that a

However, the Arbitrator upheld reviewing court should look only to the

Coleman’s decision to refuse to allow the Arbitrator’s Award, and not his reasoning,

Davidson Group to rescind because in determining whether it draws its essence

Coleman articulated a merit- or skill- from the CBA.

related basis for the refusal. Finally, the

Arbitrator concluded that the members of In reviewing this portion of the

the Nauert Group did not have more than Award, the District Court noted its concern

five years experience and thus were not over the Arbitrator’s determination with

entitled to the limited protections offered respect to this issue. The court

by Article VIII. Opinion and Award at 93- nevertheless, citing Steelworkers v.

94. Enterprise Wheel & Car Corp., 363 U.S.

593, 597 (1960), and ARCO-Polymers,

The Leagues challenge the Inc. v. Local 8-74, 671 F.2d 752, 756 (3d

Arbitrator’s interpretation and application Cir. 1982), confirmed this portion of the

of Article VIII. Specifically, the Leagues Award because the court believed binding

contend that the Arbitrator exceeded his precedent prevented it from vacating an

authority and that the Award failed to draw award simply because of the existence of

its essence from the CBA in two respects. ambiguity in the Arbitrator’s reasoning.

First, they read the Award as concluding Although the court noted the confusing

that Article VIII is applicable only in nature of the Award, it ultimately

situations involving the selection or concluded that the Arbitrator “did interpret

retention of umpires. They also read the the Agreement and did manifest fidelity to

Award as holding that the umpires at issue his proper role as to the National League

in this case voluntarily resigned and were umpires to whom he applied the merit and

not entitled to the protections afforded by skill standard of Article VIII A. Slip op. at

Article VIII. The Leagues therefore 17. The District Court further noted that,

contend that the Arbitrator’s application of because it believed the Arbitrator had

the Article VIII merit and skill criteria reached the proper conclusion, the

results in a logical inconsistency. reasoning which provided the basis for its

conclusion was irrelevant.

Second, the Leagues assert that the

arbitrary and capricious standard of review We are in accord with the District

applied by the Arbitrator to Coleman’s Court’s conclusion that it may not vacate

merit and skill determinations exceeded an award based solely on an ambiguity in

20

an arbitrator’s opinion. See Roadway draws its essence from the CBA.

Package System, Inc. v. Kayser, 257 F.3d

287, 301 (3d Cir. 2001). However, we Simply stated, the Arbitrator’s

agree with the Leagues’ assertion that the interpretation of the CBA was as follows:

District Court erred in stating that the (1) Article VIII creates minimal

reasoning of the Arbitrator is entirely protections from termination for umpires

irrelevant. See id. (holding that “a court with more than five years of service; (2)

may conclude that an arbitrator exceeded because the umpires at issue in this case

his or her authority when it is obvious resigned, none were entitled to the

from the written opinion”); Newark protections of Article VIII in the first

Morning Ledger, 797 F.2d at 167 n.6 instance regardless of the number of years

(holding that a court is not required “to of service; (3) even though Article VIII

disregard what an arbitrator says in order was not directly applicable in this case,

to justify what the arbitrator does”). National League President Coleman

Nevertheless, we do not find this error to invoked it in determining which nineteen

be essential to the court’s resolution of this of the thirty-two final resignation

matter. We therefore reject the Leagues’ rescissions to accept (a decision that

invitation to use it as a basis for disturbing essentially involved the “selection” of

the District Court’s confirmation of this individuals from among the pool of

portion of the Award. At bottom, the resigned umpires, thereby arguably making

Leagues’ primary contention is that the the appli cation of A rticle VIII

Award is inconsistent. More specifically, appropriate); (4) once Article VIII was

they contend the Arbitrator employed invoked, Coleman was required to adhere

varying and questionable logic in first to its terms in making his determinations

determining that Article VIII did not with respect to which rescissions to accept;

govern the dispute because the umpires (5) adhering to Article VIII meant

had resigned (as opposed to being articulating a reason that bore “some

terminated), but then nevertheless relationship to the merit and skill of th[e]

requiring National League President umpire,” for each decision reached with

Coleman to employ the Article VIII skill respect to the thirteen umpires not

and merit criteria appropriately and permitted to rescind their letters of

consistently once he chose to invoke it. resignation; (6) because Coleman failed to

meet this standard with respect to the

The Leagues’ argument is Darling Group, those umpires must be

unpersuasive. Regardless of whether reinstated; (7) because Coleman did meet

another interpretation of the CBA would this standard with respect to the Davidson

make more sense, or whether we or the Group, the grievances of those umpires

District Court would reach a different were denied; (8) however, because the

result if reviewing this case de novo, the Nauert Group failed to qualify for this

Arbitrator’s reading is logical and clearly protection in the first place, the members

21

of that group could essentially be fired at result within a short period of time and at

will. relatively minimal expense. See, e.g.,

Matteson, 99 F.3d at 113 (noting “the

Although we acknowledge that the congressional policy of promoting speedy,

quality of the Arbitrator’s reasoning leaves efficient, and inexpensive resolution of

something to be desired, we see no basis labor grievances”); Remmey, 32 F.3d at

for judicial intervention. The Arbitrator’s 146 (noting that “the ‘twin goals of

interpretation is discernable, coherent, and arbitration’” are “‘settling disputes

draws its essence from the CBA. Given efficiently and avoiding long and

the limited scope of our review, nothing expensive litigation’”) (quoting Folkways

more is required. Music Publishers, Inc. v. Weiss, 989 F.2d

108, 111 (2d Cir. 1993)). However, the

In closing, we cannot help but note possibility of receiving inconsistent or

that, at their core, many of the claims incorrect rulings without meaningful

raised by both sides in this litigation appellate review of the merits is one of the

amount to little more than requests for risks such parties must accept when they

judicial review of the merits of the Award. choose arbitration over litigation. Where,

We reiterate that such review is inimical to as here, an award that is questionable

the public policy underlying the limited nevertheless falls within the broad

role assigned to the federal courts in the discretion granted to arbitrators, it must be

area of arbitration. See Pennsylvania confirmed.

Power II, 276 F.3d at 178 (“The rationale

for the court’s limited role is to ensure that V. Conclusion

the federal policy of encouraging

arbitration of labor disputes is not For the reasons stated above, we

subverted by excessive court intervention will affirm the final judgment of the

on the merits of an award.”); Remmey v. District Court.

PaineWebber, Inc., 32 F.3d 143, 146 (4th

Cir. 1994) (“Limited judicial review is Becker, Circuit Judge, dissenting.

necessary to encourage the use of

arbitration as an alternative to formal In my view, the dispute that the

litigation . . . . A policy favoring Arbitrator, the District Court, and the

arbitration would mean little, of course, if majority of this panel go to such lengths to

arbitration were merely the prologue to resolve was never arbitrable in the first

prolonged litigation.”). place. These tribunals are all agreed that

the umpires resigned – a mass resignation

It is beyond question that arbitration of a significant portion of the bargaining

proceedings are a valuable method of unit. None of the umpires was terminated

dispute resolution, as they offer a means or discharged. As I see it, under these

by which parties may obtain a binding circumstances, there was no violation

22

either of the basic agreement or of the first judgment of the District Court and remand

paragraph of Article VIII A that could with directions to dismiss the complaint.

trigger the arbitration clause. Moreover,

even if one were to ignore the fact of the

resignations, the matter would still not be

arbitrable because as I read that clause, it

confers upon the League Presidents the

unfettered (“final and binding”) right to

discharge an umpire with five or more

years of service.13 The language could not

be clearer, and the exercise of conflating

the second paragraph of Article VIII A –

which deals with retention on the basis of

merit or skill, and the proscription against

discrimination or recrimination – with the

first paragraph of Article VIII A does not

carry the day because the first paragraph

deals with a wholly different situation – a

mass resignation.

This result is not changed by the

standard of review. As I read the record,

Major League Baseball agreed to submit

the question of arbitrability to the

arbitrator while preserving its right to

challenge his determination. While this

converts our normal de novo standard of

review (of the arbitrability decision) into a

deferential one, see United Indus. Workers

v. Gov’t of V.I., 987 F.2d 162, 167-68 (3d

Cir. 1993), that does not change the result

because, in my opinion, the determination

that the dispute was arbitrable was

manifestly erroneous, and did not draw its

essence from the agreement. I therefore

respectfully dissent, and would vacate the

1.

Any argument based on the five year

clause has dropped out of the case because

the umpires with less than five years

experience have settled.