JEROME SIMANDLE, District Judge
This action is before the Court on the motion of defendant JNESO-District Council 1, IUOE, AFL-CIO ("JNESO" or "Union") to confirm the arbitration award entered on January 15, 2002 by Michael Berzansky, an arbitrator with the American Arbitration Association. Also before the Court are the motions of plaintiff Virtua-West Jersey ("Virtua-West" or "Employer") to vacate the arbitration award and for summary judgment. On January 15, 2002, Berzansky concluded that Virtua-West violated the collective bargaining agreement ("CBA" or "Agreement"), to which both Virtua-West and JNESO were parties. Because the arbitrator's award does not exceed the question presented for arbitration, draws its essence from the parties' agreement and has a rational basis in the evidence before him, this Court will grant defendant's motion to confirm the arbitration award and deny plaintiff's motion to vacate the award. Plaintiff's motion for summary judgment is dismissed.
I. BACKGROUND
As stated by both parties, the relevant facts are not in dispute. Plaintiff Virtua-West is a health care system operating hospital facilities in Burlington and Camden Counties in New Jersey. Defendant JNESO is a labor organization representing registered nurses and health care employees, and is also the certified representative of registered nurses employed at Virtua-West. Virtua-West and JNESO are parties to a collective bargaining agreement ("CBA" or "Agreement"), which covers the period of June 11, 2000 to June 8, 2003. This dispute arises from Virtua-West's failure to pay a charge pay premium wage ("charge" or "charge pay") to those registered nurses who were temporarily designated with charge nurse duties. "`Charge' refers to the assignment of unit-wide, patient care and routine administrative responsibilities to a non-supervisory employee." (Br. in Support of Pet'r.'s Pet. to Confirm at 2.) Traditionally, the Employer paid those nurses who had been assigned charge duty an additional $.25 per hour. (Id.) However, prior to contract negotiations,
the Hospital had discontinued "charge pay" while still continuing to assign charge duties. Throughout the Hospital, the duties associated with the "charge" role vary markedly from unit-to-unit. On some units, charge nurses are relieved of patient care responsibilities while on other floors charge nurses carry a full patient load.
(Id.) Although the Agreement does not specifically authorize the Employer to assign charge duties, Virtua-West continued to do so after the Agreement became effective, and it did not provide additional compensation to those nurses assigned charge.
A. Relevant CBA Provisions
The arbitrator relied primarily upon the following articles contained in the CBA in determining the award. Article 5 grants Virtua-West broad authority in managing and operating the hospitals. Specifically, Article 5 provides:
5.1 . . . The Employer retains all of the powers, rights, functions, responsibilities and authority to operate its business and direct its employees except as limited by express language of this Agreement. . . . Prominent among the rights reserved to and retained by the Employer, but by no means wholly inclusive, are the sole right to . . . establish job duties and standards of performance . . . to assign or transfer temporarily or permanently employees as operations may require. . . .
5.2 The Employer may introduce a change in the method or methods of operation, which may produce a change in job duties and reduction in personnel in any department. . . .
5.3 The Union agrees to cooperate with the employer to attain and maintain maximum patient care and full efficiency and the Employer agrees to consider constructive suggestions submitted by the Union toward these objectives.
5.4 The Employer reserves the right to make any changes in operation not expressly and clearly restricted by this Agreement.
Article 9 provides for submission of grievances to arbitration:
9.2 The arbitrator shall be bound by the terms of the Agreement and shall not have jurisdiction to add to, modify, vary, change or remove any terms of this Agreement.
9.5 The decision of the Arbitrator shall be final and binding upon the parties.
Article 16 sets forth the process for changing job descriptions:
16.11 The employer retains the right to develop/change job descriptions as needed. The Union will be given copies of current job descriptions as well as copies of new/changed job descriptions and will give the Union an opportunity to discuss new/changed job descriptions prior to implementation. If agreement on changes cannot be reached, the Employer may implement the changes. Disagreement over the implemented changes may be raised in accordance with the grievance and arbitration procedure of this agreement.
Article 28 provides a zipper clause:
28.1 The parties acknowledge and agree that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter included by law within the area of collective bargaining, and that all understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. This agreement expressly supercedes any practices, understandings and agreements not specifically provided for and incorporated in this Agreement. This Agreement thus contains the entire understanding, undertaking and agreement of the parties hereto and finally determines and settles all matters of collective bargaining for and during its term, except as may be otherwise specifically and expressly provided herein. Changes in this agreement, whether by addition, waivers, deletions, amendments or modifications, must be mutually agreed upon in writing signed by both parties.
Article 42 details the agreed upon terms for wages:
42.2 . . . Care coordinators [charge nurses] . . . shall be paid at a rate of 2.5% above the rates set forth above.
Articles 43 and 48 are the only provisions to reference charge responsibility:
43.7 A flight nurse will be placed in charge of each shift when the Chief Flight Nurse is not present.
48.1 Reassignment is defined as the assignment of an employee to a patient care unit other than the one which she/he is normally assigned. The Hospital and the Union recognize that nurses may or may not have the training and/or the experience to work in certain clinical areas of practice. Nurses without appropriate training and/or experience shall not be reassigned to such areas.
48.3 The manager will exert his/her best efforts not to put nurses who are reassigned in charge.
B. The Decision at Arbitration
The issue presented at the underlying arbitration was "Whether the Employer violated the Collective Bargaining Agreement by failing to pay employees who are designated as charge nurse. If so, what shall be the remedy?" (Op. and Award at 1.) At arbitration, JNESO argued that (1) nurses covered by the Agreement are entitled to compensation when required to take "charge," pursuant to Article 42.2, (2) management does not have authority to assign charge since the agreement does not provide for assignment of charge, (3) assuming charge is not a general responsibility of a staff nurse because the job description for registered nurses does not reference charge responsibility, and (4) even if management can assign charge, those nurses are entitled to at least an additional $.25 as provided by the hospital's Human Resources Manual. (Id. at 5, 8.) Virtua-West argued that (1) the Agreement did not require the Employer to pay additional compensation to those nurses who assumed charge since, traditionally, taking charge is one of a staff nurse's routine responsibilities, (2) it has the right to assign charge pursuant to Article 16.11 giving Virtua-West the authority to change job descriptions, (3) the Agreement does reference temporary charge duty in reference to Southstar and reassigned nurses, implying that JNESO had accepted charge without pay as a part of a staff nurse's responsibility and (4) Virtua-West does not have to pay an additional $.25 per hour to nurses assigned charge because the Agreement does not require it to do so and Article 28.1 of the Agreement states that it supercedes all other past practices. (Op. and Award at 9-10.)
Although the Agreement contains no provision specifically regarding additional compensation for those nurses who temporarily take charge, the Agreement does provide for an additional 2.5% pay differential for charge nurses. (Article 42.2.) The Agreement also provides no direct reference to management's right to assign charge to staff nurses. The Arbitrator also found that the position description for a registered nurse does not include charge responsibility. During negotiations, JNESO proposed a provision giving management the right to assign charge so long as it paid those nurses assigned charge an extra dollar ($1.00) per hour above their ususal pay rates. (Op. and Award at 6.) However, Virtua-West refused to include the provision in the Agreement. (Id.) At that time, JNESO informed Virtua-West that staff nurses would no longer take charge, and the undisputed response from Virtua-West was, "Fine." (Id. at 10).
The Arbitrator relied heavily upon this response from Virtua-West to determine that the Employer had violated the Agreement by failing to pay employees designated as charge nurse. The Arbitrator found that although Virtua-West left the negotiating table expecting that staff nurses would continue to take charge, it did not communicate this expectation to JNESO, and that by failing to make this communication, the Employer lost the right to assign charge to staff nurses.
The Arbitrator also found that despite Virtua-West's breach of the Agreement, it did not have to reimburse those nurses who had assumed charge since the Agreement contained a zipper clause providing that the Agreement superceded the traditional $.25 per hour increase, while providing no new pay rate for temporary charge. Likewise, since the Agreement also superceded the past practice of assigning charge responsibilities to registered nurses, the employer is precluded from doing so under the Agreement, other than the Southstar charge assignment in Article 43. In essence, the Arbitrator found that both the $.25 premium for assignment of charge responsibilities sought by the Union, and the assignment of charge responsibilities to registered nurses, except on Southstar, were precluded by the Agreement's silence on both issues. That silence, in the Arbitrator's view, memorialized the parties' agreement that no premium would be paid and no assignment of charge responsibilities would be undertaken.
II. DISCUSSION
Virtua-West argues that this Court should vacate the Arbitrator's award because (1) the Arbitrator's ruling did not draw its essence from the Agreement, (2) the Arbitrator's opinion was irrational, and (3) the Arbitrator exceeded the scope of his authority when he construed the Agreement. However, this Court is unpersuaded by Virtua-West's arguments and will uphold the award for the following reasons.
A. The Arbitrator's Decision Draws its Essence from the CBA
An arbitrator's authority comes from the agreement to arbitrate, Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125, 1131 (3d Cir. 1972), which in this case states that any disputes not resolved by the grievance procedure outlined in the CBA, "may be submitted to arbitration only by the union." (Agreement, art. 9, ¶ 9.1 at 13.) Statutorily, there are certain situations in which a district court may vacate an arbitrator's award, none of which apply here. See 9 U.S.C. § 10 (court may vacate an arbitration award where it was procured by corruption, fraud, or undue means, where the arbitrators are totally or partially corrupt, where arbitrators were guilty of misconduct, or where arbitrators exceeded their power or imperfectly executed that power).
Additionally, the Third Circuit has held that courts may vacate arbitrators' awards if they do not meet the test of "fundamental rationality." Swift, 466 F.2d at 1131. In so stating, the Third Circuit relied upon the standards of a labor dispute case,Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969), for the proposition that "`mere error in the law or failure on the part of the arbitrators to understand or apply the law' will not justify judicial intervention, and that the courts' function in confirming or vacating a commercial award is `severely limited' . . .;" and that "the interpretation of . . . arbitrators must not be disturbed so long as they are not in `manifest disregard' of the law." Id., quoted in Swift, 466 F.2d at 1130. See also News America Publications, Inc. v. Newark Typographical Union, Local 103, 918 F.2d 21, 24 (3d Cir. 1990) ("there must be absolutely no support at all in the record justifying the arbitrator's determinations for a court to deny enforcement of an award"). The Sixth Circuit agrees:
It is very well settled that the courts are generally required to refrain from reviewing the merits of an arbitrator's award due to the policy favoring arbitration as a means of resolving labor disputes. . . . But there are at least two important exceptions to this general rule. First, `the arbitrator is confined to the interpretation and application of the collective bargaining agreement, and although he may construe ambiguous contract language, he is without authority to disregard or modify plain and unambiguous provisions. . . .' Second, `although a court is precluded from overturning an award for errors in the determination of factual issues, `(n)evertheless, if an examination of the record before the arbitrator reveals no support whatever for his determinations, his award must be vacated.''"
Storer Broadcasting Co. v. American Federation of Television and Radio Artists, Cleveland Local, AFL-CIO, 600 F.2d 45, 47 (6
th Cir. 1979) (internal citation omitted).
Moreover, the "Supreme Court has consistently held that courts exercise a narrow and deferential role in reviewing arbitration awards arising out of labor disputes." Pennsylvania Power Co. v. Local Union No. 272, Int'l Broth. of Electric Workers, AFL-CIO, 276 F.3d 174, 178 (3d Cir. 2001) (citing United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36 (1987);Major League Baseball Players Association v. Garvey, 532 U.S. 504 (2000)). Under the fundamental rationality test, this Court may overturn an arbitrator's award only where (1) it does not draw its essence from the agreement (Pa. Power, 276 F.3d at 178 (citing W.R. Grace Co. v. Local Union 759, 461 U.S. 757, 764 (1983))), (2) the arbitrator has shown manifest disregard of the agreement (Pa. Power, 276 F.3d at 178), or (3) the arbitrator has "dispensed his own brand of justice." (Pa. Power, 276 at 178 (quoting United Steelworkers of America v. Enterprise Wheel Car Corp., 363 U.S. 593, 597 (1960))).
In this case, Virtua-West argues that the arbitrator's award did not draw its essence from the Agreement because there is no explicit section which provides for charge pay under the circumstances present here. However, this Court finds that, contrary to Plaintiff's argument, the arbitrator rationally determined that Defendant Virtua-West violated the Agreement by failing to pay employees who had been designated as charge nurse pursuant to Article 42.2 of the Agreement.
The arbitrator first determined that the language of the Agreement was ambiguous since two sections referenced charge responsibility, but no section provided for the actual assignment of, or payment for, temporary charge duties. Thus, the arbitrator was entitled to review extrinsic evidence, such as negotiations, to determine the intent of the parties. See Manville Forest Products Corp. v. United Paperworkers Intern. Union, AFL-CIO, 831 F.2d 72, 75 (5th Cir. 1987) (citing Boise Cascade Corp. v. United Steelworkers of America, 588 F.2d 127, 128 (5th Cir.),cert. denied, 440 U.S. 830 (1979)) (holding that where the arbitrator finds the terms of the contract ambiguous, he or she may turn to extrinsic evidence to determine the essence of the contract). After so doing, the arbitrator rationally found that because the employer verbally accepted JNSEO representative's statement that staff nurses would not accept charge, communicated no expectation that staff nurses would continue to accept charge after that point, did not include charge responsibilities in the registered nurse description, and negotiated no specific provision in the Agreement granting the Employer the right to continue assigning charge, the Agreement ended the prospect of such assignment of charge responsibilities.
The Arbitrator was also resolving the Agreement's tension between management rights in Article 5 and the development or change of job descriptions under Article 16, supra, each of which the Arbitrator identified as "Relevant Contract Provisions." As Plaintiff has pointed out, the Agreement contains a broad management rights provision reserving to Virtua-West various rights, including the rights
to establish and change work schedules and assignments; to establish job duties and standards of performance; . . . to assign professional nursing duties to the work force; to assign or transfer temporarily or permanently employees as operations may require; . . . to determine the number of employees and duties to be performed by them as registered nurses. . . .
Article 5.1, supra. The right of Virtua-West to develop or change job descriptions, on the other hand, was governed by Article 16.11, supra, which calls for Virtua-West to give JNESO copies of current job descriptions and new/changed job descriptions, which are to be discussed between Virtua-West and JNESO prior to implementation; if a disagreement exists after a change is implemented, the Union may grieve the change under grievance and arbitration procedure. The current position descriptions thus govern the definitions of the various positions elsewhere in the Agreement, unless modified by the employer in accordance with Article 16.11. The Arbitrator thus confronted a situation in which the relevant current job description for registered nurse, upon which the duties and rates of pay of the registered nurse are premised, does not include the responsibilities of the charge nurses — the Care Coordinators — referenced in Article 42.2. Thus, while the employer had the right to transfer registered nurses and to determine the duties of registered nurses under Article 5.1, the Arbitrator could rationally conclude that the term "registered nurse" is described by the position description, while the "charge nurse," or "care coordinator," is described by a different position description, rate of pay and range of duties, and that the Agreement's implication is that the two are not interchangeable unless a registered nurse is promoted to a charge nurse at greater pay.
By considering all of the evidence before him in determining the intent of the parties, the arbitrator showed no manifest disregard of the agreement, nor did he distribute his own brand of justice. Indeed, the arbitrator's award has a substantial basis in the written Agreement. Thus, this Court finds that the arbitrator's award is rationally drawn from the essence of the contract, and it must uphold the award.
B. The Arbitrator's Opinion Was Not Irrational
Plaintiff Virtua-West argues to this Court that the arbitrator's award must be vacated on the ground that the opinion is inconsistent and irrational since the arbitrator "took the illogical position that Virtua-West had violated its obligation to provide charge pay, but that he could not order Virtua-West to provide charge pay because Virtua-West had no obligation to pay for charge." (Pl.'s Mem. in Support of its Opp'n. at 14.) Contrary to Plaintiff's contention, `mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award." Enterprise Wheel, 363 U.S. at 598; see also W.R. Grace, 461 U.S. 757 (1983)). Thus, under Enterprise, an ambiguous statement made by the arbitrator does not require that this Court vacate the award.
Additionally, the arbitrator did not reach an irrational conclusion in his opinion. Although the arbitrator refused to grant JNESO's request for reimbursement for those nurses assigned charge on the basis that the parties had not negotiated a supplemental pay rate, this conclusion does not effect the arbitrator's finding that the Agreement also did not contain a provision granting Plaintiff Virtua-West authority to assign charge. Thus, the Arbitrator rationally found that although Article 42.2 provides for an increased pay rate for charge nurses, it does not provide for payment of temporary charge nurses since Virtua-West had retained no authority to assign charge on a temporary basis to a registered nurse whose position description does not include charge responsibility.
C. The Arbitrator Did Not Exceed the Scope of his Authority
Plaintiff Virtua-West argues that the "zipper clause" contained in the Agreement limits the arbitrator's authority by requiring him to be "bound by the terms of the Agreement" and by stating that he "shall not have jurisdiction to add to, modify, vary, change or remove any terms of this Agreement." (Pl.'s Mem. in Support of its Opp'n. at 8.) However, Plaintiff mischaracterizes the arbitrator's interpretation of past contract negotiations as an attempt to modify the Agreement. A zipper clause merely prohibits arbitrators from deviating from a clear, written contract provision. Anheuser-Busch v. Teamsters Local 744, 820 F.3d 1133 (7th Cir. 2002). The fact that the Agreement contains a zipper clause does not outweigh the arbitrator's right to consult extrinsic evidence to determine the essence of the contract where a provision is ambiguous. In this case, as Defendant JNESO notes, the Agreement contains no specific clause or provision addressing payment for staff nurses assigned charge. Thus, as noted above, the arbitrator had the jurisdiction to consider extrinsic evidence, like prior negotiations, to determine the essence of the Agreement.
Therefore, this Court finds that the Arbitrator's finding that Virtua-West-West forfeited its right to assign charge duties draws its essence from the Agreement. First, the only two references to charge duties contained in the Agreement provide for a 2.5% pay differential for charge nurses, see Agreement, art. 42.2, and for the assignment of temporary charge duties on Southstar, see Agreement, art. 43.7. Thus, the arbitrator's finding that the Employer is not authorized to assign temporary charge duties to staff nurses is consistent with the written Agreement. Second, the arbitrator's award is consistent with the intent of the parties as reflected in their verbal negotiations where Virtua-West accepted JNESO's statement that staff nurses would no longer continue to accept charge duties without pay. Third, the arbitrator logically concluded that since Virtua-West did not retain authority to assign charge, it was also not obliged to provide payment to those nurses assigned charge duties under the provisions of the Agreement. Finally, Plaintiff Virtua-West has failed to meet its high burden of proof of showing that the Arbitrator's decision was not fundamentally rational. Therefore, this Court will uphold the Arbitrator's award.
III. CONCLUSION
For the foregoing reasons, this Court finds that the Arbitrator's award is drawn from the essence of the agreement and has a rational basis in the evidence. This Court will, therefore, uphold the Arbitrator's award.
ORDER
This matter having come before the Court upon the motion of defendant, JNESO-District Council 1, IUOE, AFL-CIO, to confirm an Arbitration Award [Docket Item 10-1], and also upon the cross-motion of plaintifff, Virtua-West Jersey, to vacate the Arbitration Award and for summary judgment pursuant to Rule 56, Fed.R.Civ.P. [Docket Item 14-1]; and the Court having considered the parties' submissions; and the Court having heard oral argument on these motions on May 29, 2002; and for the reasons expressed in an Opinion of today's date;
IT IS this day 2nd of August 2002 hereby
ORDERED that defendant/counter-claimant's motion to confirm the arbitrator's award [Docket Item 10-1] be, and hereby is, GRANTED and the Award dated January 15, 2002 is hereby ENFORCED ; and
IT IS FURTHER ORDERED that plaintiff/counter-defendant's cross-motion to vacate the arbitrator's award be, and hereby is, DENIED, and that plaintiff/counter-defendant's motion for summary judgment [Docket Item 14-1] be, and hereby is, DENIED.