GERALD R. HOOLAHAN, Petitioner, Appellee, v. IBC ADVANCED ALLOYS CORP., Respondent, Appellant.
No. 19-1444
United States Court of Appeals For the First Circuit
January 17, 2020
Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O‘Toole, Jr., U.S. District Judge]
Stephen F. Gordon, with whom Todd B. Gordon and The Gordon Law Firm LLP, were on brief, for appellee.
Finding this all woefully unfair, IBC embarked on its Mt. Everest climb: it decried the arbitrator‘s calculations and first requested that the arbitrator modify the award. Denied there, it kept trekking, and asked the district court to vacate the award. Denied again, but still seeking the mountaintop, IBC appealed to this court. And here we are.
I. BACKGROUND
A. The Parties
Appellant IBC is a “beryllium and copper advanced alloys company . . . [that] serves a variety of industries such as defense, aerospace, automotive, [and] telecommunications . . .”1
Appellee Hoolahan owned two companies, Advanced Specialty Metals and Composite Material Solutions (“CMS“); certain assets from both those companies were combined to form a new company: Beralcast, that uses beryllium in its manufacturing operations. Hoolahan and Mattheson were the only two shareholders of Beralcast.
The United States has classified beryllium as a strategic material, as “[i]t has extensive use in the Defense Industry, and users are required to keep strict control of the usage and location of their beryllium inventory.” For companies
B. The Agreement
On February 17, 2010, IBC (and its subsidiary) purchased Beralcast for its beryllium manufacturing operations from Hoolahan and Mattheson. In exchange, Hoolahan and Mattheson received $2.25 million in cash consideration (the full amount deposited into the bank account for AMS), and shares of capital stock in IBC (“IBC Shares“) equivalent in value to $2 million. Hoolahan received 7,303,271 IBC Shares; Mattheson, 5,957,905. The purchase and its terms are set forth in a Share Purchase and Sale Agreement (the “Agreement“).
The Agreement‘s articles most relevant to this appeal are:
- Two sub-articles of article 2.3, “Payment of Purchase Consideration“:
- Article 2.3(e)(i)(A) (prohibiting the sale, transfer, or trade of IBC Shares on the TSX Venture Exchange, a stock exchange in Canada, for four months and one day after the closing of the Agreement).
- Article 2.3(e)(ii) (relieving IBC of any obligation “to register the IBC Shares or to
take any other actions to facilitate or permit any resale or transfer thereof in the United States or otherwise by or to a US Person . . .“).
- Article 3.2(p), “Judgments and Claims” (Hoolahan and Mattheson representing and warranting that there were no unsatisfied judgments, claims, or potential claims against Beralcast at the time of the Agreement).
- Article 13.3, “Further Assurances” (obligating the Parties to “execute, acknowledge and deliver such other instruments and take such other action as may be reasonably necessary to carry out their obligations under this Agreement“).
- Article 13.6, “Governing Law” (agreeing that the Agreement be “interpreted and construed in accordance with the laws of the State of Delaware“).
- Article 13.6.2, “Arbitration” (obligating the parties to arbitrate any disputes arising out of the Agreement in accordance with the Commercial Rules of the American Arbitration Association (“AAA Commercial Rules“)).
- Article 13.9, “Time of the Essence” (“Time shall be of the essence in this Agreement and of all matters contemplated in this Agreement.“).
C. Hoolahan‘s Attempts to Sell his IBC Shares
Over a year after the Agreement‘s execution, and well past the “four months and one day” time constraint from article 2.3(e)(i)(A), in late April or early May of 2011, Hoolahan attempted to sell his IBC Shares through his brokerage firm, Edward Jones.2 At that time, IBC Shares were valued at $0.27 per share, so Hoolahan‘s total shares would have been worth approximately $1,971,883.10. On July 25, 2011, IBC‘s Toronto (Canada) transfer agent informed Hoolahan‘s brokerage firm that Hoolahan‘s request
Schoenberger started by contacting Hoolahan‘s brokerage firm. On May 16, 2012, an administrator from the firm emailed Schoenberger‘s colleague that Schoenberger needed to contact IBC‘s Chief Financial Officer, Simon Anderson, regarding Hoolahan‘s inability to sell his shares. That same day, Schoenberger spoke with Anderson over the phone for about five to ten minutes (the “Phone Call“). Anderson told Schoenberger during the call that IBC had blocked the sale of Hoolahan‘s IBC Shares because Hoolahan had failed to disclose an outstanding $208,000 claim by ULBA (the Kazakhstan corporation) against AMS3 (sister company to CMS, which was the forerunner to Beralcast) existing at the time of the Agreement‘s execution (“the ULBA/AMS claim“).4 In response, Schoenberger told Anderson that he believed the sale restriction on Hoolahan‘s IBC Shares violated the terms of the Agreement, and that the damages for this breach would be based upon the change in
In May 2013, Hoolahan (whose IBC Shares had undergone a series of “reverse stock splits”5) was able to sell 250,000 of his IBC Shares for $25,000, at $0.10 per share. Had Hoolahan sold all of his shares at that time (1,217,212 due to the first reverse split), he would have received a total of $121,721.
In 2015, Hoolahan and Mattheson were engaged in litigation unrelated to the issues in this case. Discovery during that litigation, however, uncovered a Voluntary Pooling Agreement (to be explained in a moment) between IBC and Mattheson entered into on May 5, 2011 (the “IBC-Mattheson Pooling Agreement“) -- around the same time that Hoolahan had made his first unsuccessful attempt to sell his IBC Shares. The IBC-Mattheson Pooling Agreement permitted Mattheson to sell his IBC Shares at certain increments on an agreed-upon schedule, including between 2011 and 2012, when Mattheson made six sales for some of his IBC Shares for a total of $421,176.14.
E. The Arbitration
Upset by Mattheson‘s special treatment and profit, Hoolahan filed a Demand for Arbitration with the American Arbitration Association (“AAA“) asserting claims against IBC for willful and knowing breach of the Agreement and breach of the implied covenant of good faith and fair dealing for deliberately blocking Hoolahan‘s sale of IBC Shares.6 Hoolahan‘s initial claim for damages, $1,850,162 (plus attorneys’ fees, costs, and
On April 28, 2017, a one-day arbitration was held in Boston, Massachusetts, before AAA arbitrator Robert T. Ferguson. At the hearing, Hoolahan claimed IBC deliberately blocked his sale of IBC Shares in breach of the Agreement because of the ill-will IBC harbored against Hoolahan in connection with the outstanding ULBA/AMS claim. Citing to article 2.3 of the Agreement, IBC responded that it could not breach the Agreement for failing to assist in the sale of IBC Shares because the Agreement explicitly released IBC from any such obligation. IBC also argued that it did not impermissibly block Hoolahan‘s sale because it was legally entitled to restrict the sale of IBC Shares in the U.S., and that Hoolahan was free to sell on the Canadian TSX Exchange four months and one day after the Agreement was executed.
During the hearing, attorney Schoenberger (appearing only as a witness; Hoolahan was represented by other counsel during the hearing) walked the arbitrator through his 2012 Phone Call and Email with Anderson. Anderson was originally scheduled to testify by videoconference, but was unavailable due to a death in the family. As IBC‘s counsel attempted to make a proffer of what would have been provided by Anderson, Hoolahan‘s counsel objected. Then the following exchange ensued:
IBC COUNSEL: I will if, in fact, we have -- we don‘t have Mr. Anderson here due to the death of his father, so it‘s -- and he wouldn‘t have been here anyway. It would have been by video conference due to his physical condition, but, that said, I would be more than happy to solicit from him an affidavit.
ARBITRATOR FERGUSON: I‘d prefer to see him.
HOOLAHAN COUNSEL: Oh, no, no. There will be no affidavits. He‘s got to be . . . here and examined and cross-examined.
ARBITRATOR FERGUSON: We can schedule a deposition if you‘d like.
HOOLAHAN COUNSEL: Today is the hearing.
ARBITRATOR FERGUSON: If there‘s an objection to that, today‘s the hearing.
IBC COUNSEL: If he‘s objecting, I can petition.
HOOLAHAN COUNSEL: Today‘s the hearing date.
HOOLAHAN: This is insane.
ARBITRATOR FERGUSON: Continue.
IBC COUNSEL: If I could continue, so the fact of the matter is that this7 is Mr. Anderson‘s testimony and what has been set forth by Mr. Schoenberger here, I think, is really at the crux of this dispute.
Neither party raised the option of postponing the hearing, nor did IBC raise the Anderson affidavit again.8
The Phone Call and Email between Schoenberger and Anderson were central to Hoolahan‘s claims in arbitration because
After the arbitration hearing Hoolahan submitted via email10 a revised damages calculation “based upon the ‘[IBC-Mattheson] Pooling Agreement,‘” lowering his ask from $1,850,162.00 to $1,239,737.56, plus attorneys’ fees, costs, and expenses.11
F. The Award and Ensuing Litigation
On September 8, 2017, the arbitrator entered a final arbitration award (the “Award“) and found that IBC had: (1) denied Hoolahan the benefit of his contractual bargain by blocking his sale and deliberately breaching articles 13.3 and 13.9 of the Agreement, and (2) breached the implied covenant of good faith and
The arbitrator awarded Hoolahan damages in the amount requested, $1,239,737.56, plus attorneys’ fees, costs, and expenses in the amount of $135,786.76. The damages figure was calculated by applying Hoolahan‘s original, total 2011 shares (7,303,271) to the stock value Mattheson had received on his sales made in accordance with the IBC-Mattheson Pooling Agreement. The arbitrator did not explicitly offset the Award by the profit
Within twenty days of the Award‘s issuance, IBC filed a Request to Modify the Award, pursuant to AAA Commercial Rule R-50. IBC for the first time contended that the Award should be discounted by the 96,721 IBC Shares Hoolahan retained at the time of the Award, and that because Mattheson had been able to sell only 32.7% of his shares under the IBC-Mattheson Pooling Agreement, the damages portion of the Award should have been 32.7% of $1,239,737.56.12 IBC also raised the fact that “IBC‘s essential witness Simon Anderson was denied the opportunity to be heard,” but did not explain why what Anderson had to say might alter the Award.13 Finally, IBC appended to its Request an affidavit from Mattheson describing the IBC-Mattheson Pooling Agreement. The arbitrator denied the Request.
On October 11, 2017, Hoolahan filed a Petition to Confirm the Award in U.S. District Court for the District of Massachusetts. Conversely, IBC filed a Petition to Vacate the Award. District
II. DISCUSSION
Against this factual backdrop, IBC asks this court to find that the arbitrator misinterpreted the Agreement, ignored essential evidence, and considered impermissible evidence, all to lead us to the conclusion that the Award should be vacated, or at the very least modified. The burden rests upon IBC “to establish that the arbitrator‘s award should be set aside.” Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 932 F.3d 1, 7 (1st Cir. 2019) (citing Ortiz-Espinosa v. BBVA Sec. of Puerto Rico, Inc., 852 F.3d 36, 48 (1st Cir. 2017)).
A. Standard of Review
Generally, we review the district court‘s decision to confirm or vacate an arbitration award de novo, Dialysis Access Ctr., 932 F.3d at 7 (citing Ortiz-Espinosa, 852 F.3d at 47); see also Cytyc Corp. v. DEKA Prods. Ltd. P‘ship, 439 F.3d 27, 32 (1st Cir. 2006), but we do so with great circumspection: “[a] federal court‘s authority to defenestrate an arbitration award is extremely limited.” Mt. Valley Prop., Inc. v. Applied Risk Servs., Inc., 863 F.3d 90, 93 (1st Cir. 2017)
Though we have a robust record before us, including the full transcript from the one-day arbitration hearing, the Agreement, and the Award, we remain mindful that in reviewing an arbitration award, “[w]e do not sit as a court of appeal to hear claims of factual or legal error by an arbitrator or to consider the merits of the award.” Asociación de Empleados del E.L.A. v. Unión Internacional de Trabajadores de la Industria de Automóviles, 559 F.3d 44, 47 (1st Cir. 2009) (quoting Challenger Caribbean Corp. v. Unión Gen. de Trabajadores de P.R., 903 F.2d 857, 860 (1st Cir. 1990)); see also Advest, Inc. v. McCarthy, 914 F.2d 6, 8 (1st Cir. 1990) (quoting United Paperworkers Int‘l Union v. Misco, Inc., 484 U.S. 29, 38 (1987)).
In reviewing the arbitrator‘s interpretation of the Agreement, for example, as long as the Award “draw[s] its essence” from the Agreement that underlies the arbitration proceeding, Cytyc Corp., 439 F.3d at 32 (quoting United Paperworkers Int‘l Union, 484 U.S. at 38), and the arbitrator “arguably constru[ed] or appl[ied] . . . the [Agreement] within the scope of [his] authority,” id., we will not disturb the Award. “That a reviewing court is convinced that the arbitrator[] committed error -- even serious error -- does not justify setting aside the arbitral decision.” Id. “This remains true whether the arbitrators’
All that said, arbitration awards are not invincible, and there are “a few exceptions to the general rule that arbitrators have the last word.” Cytyc Corp., 439 F.3d at 32-33. “One set of exceptions is codified in the Federal Arbitration Act (FAA). The operative provision, section 10(a) of the FAA, authorizes vacatur only in cases of ‘specified misconduct or misbehavior on the arbitrators’ part, actions in excess of arbitral powers, or failures to consummate the award.‘” Id. (citing Advest, Inc., 914 F.2d at 8). “A second set of exceptions flows from the federal courts’ inherent power to vacate arbitral awards,” id. (citing Advest, Inc., 914 F.2d at 8), in the event of a “manifest disregard of the law.” Advest, Inc., 914 F.2d at 8-10 & nn.5, 6. This power outside of section 10(a) of the FAA is nonetheless very limited and narrow. Cytyc Corp., 439 F.3d at 33; Advest, Inc., 914 F.2d at 7-8.14
B. The Merits
i. Section 10(a) of the Federal Arbitration Act
The FAA‘s central purpose is to ensure that “private agreements to arbitrate are enforced according to their terms.” Stolt-Nielsen S.A. v. AnimalFeeds Int‘l Corp., 559 U.S. 662, 682 (2010) (citations omitted). Congress passed the FAA to make written arbitration provisions or agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a
mutual, final, and definite award upon the subject matter submitted was not made.
a. 9 U.S.C. § 10(a)(1)
IBC argues that the Award should be vacated because it was “procured by . . . undue means.”
IBC‘s “procured by undue means” contention is predicated on the alleged ethically-improper testimony of Schoenberger, Hoolahan‘s attorney, who, you‘ll remember, directly called IBC‘s CFO Anderson to inquire about Hoolahan‘s inability to sell his shares, and testified during the arbitration that he learned only at the end of the Phone Call that IBC was represented by counsel. Essentially, IBC argues that but for the arbitrator‘s reliance on the communication between Schoenberger and Anderson that IBC contends violated the Ohio Rules of Professional Conduct, the
Our take: IBC is unable to show that Schoenberger‘s testimony constituted conduct amounting to “intentional malfeasance.” See id. The arbitrator determined that Schoenberger‘s conduct did not violate the
And even if the arbitrator‘s reliance on Schoenberger‘s testimony did constitute reliance on undue means (which we do not believe it does), IBC also fails to show that Schoenberger‘s testimony procured the award. The arbitrator explained in his Award that his finding of “ill-will” rested on “the timing of the grievance, the facts of the case, the evidence as offered” — not
Taking this all in, we find that IBC has failed to show that the award was procured by a reliance on undue means and should be vacated under
b. 9 U.S.C. § 10(a)(3)
IBC also argues that the arbitrator‘s refusal to postpone the hearing or permit the submittal of an affidavit from IBC‘s Anderson amounts to misconduct warranting vacatur under
IBC‘s first gripe is that the arbitrator did not postpone the hearing to allow for later testimony from Anderson, and its second that the arbitrator‘s refusal to admit into evidence an affidavit from Anderson amounted to a “refus[al] to hear evidence pertinent and material to the controversy.”
Hat in hand and acknowledging its failure to preserve its section 10(a)(3) arguments, IBC assumes that this court “will not consider issues not raised below” and therefore urges this court to review these arguments de novo as “exceptional” ones. But that is not how we handle arguments raised for the first time on appeal. Arguments “debuted on appeal” are deemed “forfeited” and therefore engender plain error review. Nat‘l Fed‘n of the Blind v. The Container Store, Inc., 904 F.3d 70, 85 (1st Cir. 2018) (citing McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) and Dávila v. Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 14 (1st Cir. 2007)).
“Plain error requires appellants to demonstrate: ‘(1) an error occurred (2) which was clear or obvious . . . (3) affected [his] substantial rights [and] (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings.‘” Nat‘l Fed‘n of the Blind, 904 F.3d at 85 (quoting Dávila, 498 F.3d at 14-15). IBC‘s first argument, that the arbitrator‘s failure to postpone the hearing (without being asked) warrants vacatur of the Award, fails under this standard as IBC “cites no authority that mandates such a sua sponte [i.e., of the arbitrator‘s own accord] continuance [another word for “postponement“].” See United States v. Scott, 877 F.3d 42, 51 (1st Cir. 2017), cert. denied, 139 S. Ct. 65 (2018). Therefore, “[w]ith no authority suggesting such a continuance was required, there was no ‘clear or obvious’ error, and thus [IBC] cannot succeed on plain error review.” Id.
Next, we apply plain error review to IBC‘s contention that the arbitrator‘s refusal to admit into evidence an affidavit from Anderson amounted to a “refus[al] to hear evidence pertinent and material to the controversy.”
And so we stop there. We find that IBC has failed to convince us that vacatur of the Award under
c. 9 U.S.C. § 10(a)(4)
IBC‘s last statutory argument is that the arbitrator misinterpreted the Agreement, leading him to “exceed[] [his] powers” under
IBC‘s failure to raise the issue of attorneys’ fees below (during arbitration or in front of the district court) would ordinarily trigger plain error review as just discussed. Nat‘l Fed‘n of the Blind, 904 F.3d at 85. But because Hoolahan does not advocate for plain error review and the highly-deferential de novo review of an arbitration award is nearly as demanding as plain error review, see, e.g., Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006) (“The [plain error] standard is high, and ‘it is rare indeed for a panel to find plain error in a civil case.‘“) (quoting Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002)), such that the outcome will in this case be the same under either standard, we will review this issue de novo as well, see United States v. Tapia-Escalera, 356 F.3d 181, 183 (1st Cir. 2004) (reviewing de novo where the appellee did not argue for a plain error standard), albeit with the deference required.
1. Attorneys’ Fees
IBC argues that the arbitrator exceeded his authority by awarding attorneys’ fees to Hoolahan in contravention of the rules and law governing the Agreement: the AAA Commercial Rules and Delaware state law. IBC notes that the AAA Commercial Rules do not permit an award of attorneys’ fees unless requested by all parties or otherwise authorized by law or the arbitration
Our task here is to follow the “cardinal principle of contract construction[] that a document should be read to give effect to all its provisions and to render them consistent with each other.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995). See also Dialysis Access Ctr., 932 F.3d at 11-12.
Although there is no single, comprehensive definition of ‘bad faith’ that will justify a fee-shifting award, Delaware courts have previously awarded attorneys’ fees where (for example) ‘parties have unnecessarily prolonged or delayed litigation, falsified records or knowingly asserted frivolous claims.’ The bad faith exception is applied in ‘extraordinary circumstances’ as a tool to deter abusive litigation and to protect the integrity of the judicial process.
Id. Delaware law “departs from the American Rule and may shift fees where the ‘underlying (prelitigation) conduct of the losing party was so egregious as to justify an award of attorneys’ fees as an element of damages,‘” Auriga Capital Corp. v. Gatz Properties, 40 A.3d 839, 881 n.183 (Del. Ch. 2012) (listing numerous instances where Delaware courts have awarded attorneys’ fees), aff‘d, 59 A.3d 1206 (Del. 2012), and IBC points to no authority — nor could we find any — that Delaware law forbids arbitrators from awarding attorneys’ fees. See, e.g., Roncone v. Phoenix Payment Sys., Inc., No. C.A. No. 8895-VCN, 2014 WL 6735210, at *5 (Del. Ch. Nov. 26, 2014) (finding that “the arbitrator acted within his authority also to award Roncone his attorneys’ fees and costs“).
2. IBC‘s Obligation to Help Hoolahan Resell
Next, IBC argues that the arbitrator exceeded his authority by misinterpreting the Agreement when he found that article 13.323 governed the obligation that IBC had breached, rather than the more specific article 2.3(e)(ii),24 which disclaims any obligations IBC has to help Hoolahan resell his shares. IBC contends that under basic principles of contract interpretation, specific language in a contract controls over general language where they conflict, the arbitrator should not have disregarded article 2.3(e)(ii), and, in doing so, the arbitrator‘s interpretation ran afoul of the contract‘s plain language.
Now remember, “[a]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed
Even if IBC is right that the arbitrator did not correctly interpret the Agreement, he nonetheless interpreted it. And that is enough. Compare Oxford Health, 569 U.S. at 569-70 (explaining that arbitrators do not exceed their authority as long as they interpret, even arguably, relevant contractual provisions), with Stolt-Nielsen S.A., 559 U.S. at 674-75 (finding panel exceeded authority in concluding agreements allowed for class arbitration where the clauses were silent on the issue and the panel failed to examine whether the FAA or state law provided a default rule). The specific article that IBC seeks to advance and argues that the arbitrator ignored (article 2.3(e)(ii)) was raised multiple times in front of the arbitrator during the arbitration hearing, so much so that the article was even read
IBC has therefore also failed to show that the arbitrator exceeded his authority under
ii. Manifest Disregard of the Law
In addition to its statutory arguments, IBC also claims that the arbitrator acted with “manifest disregard of the law” when he failed to offset Hoolahan‘s Award with 1) the proceeds from Hoolahan‘s 2013 sale of 250,000 IBC Shares25 and 2) the value
Assuming its ongoing viability, the common law doctrine of “manifest disregard of the law” “allows courts a very limited power to review arbitration awards outside of section 10 [of the FAA].” Dialysis Access Ctr., 932 F.3d at 12-13 (citing Mt. Valley Prop., Inc. v. Applied Prop. Techs., Inc., 863 F.3d 90, 94 (1st Cir. 2017)). Under this doctrine, a court may vacate an award that is “(1) unfounded in reason and fact; (2) based on reasoning so palpably faulty that no judge, or group
IBC dresses its miscomputation grievance as three separate grounds for vacatur under this doctrine: 1) the miscomputation makes the Award “unfounded in reason and fact“; 2) no other judge would have made such a miscomputation; and 3) the miscomputation results from reliance on a “non-fact” — the “assumption that Hoolahan no longer owned any shares” at the time of the Award.
As to grounds one and two, IBC cites no case law to support its contentions that the Award is “unfounded in reason and fact” and that “no judge” would have made the purported miscomputation. For ground one, IBC criticizes the arbitrator‘s math for not discounting the Award by the value of the shares Hoolahan still retained at the time of the Award, and for assuming that Hoolahan would have been able to sell all his shares when Mattheson had, rather than the fraction of total shares that Mattheson actually sold in 2011. And for ground two, IBC simply states that “no judge would [have made] the above-described computational error in awarding damages,” and the decision was “so mangled by faulty reasoning that it awards a double-recovery.”
As for ground three, IBC relies on only one case in support of its “non-fact” argument, that the arbitrator “inaccurately assumed that Hoolahan no longer owned any shares [at the time of the Award], when in fact he still held 96,721.” In Electronics Corp. of America v. Int‘l Union of Elec., Radio and Mach. Workers, AFL-CIO Local 272, 492 F.2d 1255 (1st Cir. 1974), the sole basis of the arbitrator‘s award was premised on a mistaken belief (underscored by claimant‘s poor presentation of the facts) that an employee had not been suspended prior to termination and had therefore been denied “industrial due process” under a progressive discipline system. Id. On appeal this court found that the employee‘s prior suspension had been presented to the arbitrator (albeit not so clearly), and so vacated the award. Id. Electronics Corp. is inapposite here because there exists no equivalent “non-fact.” There is no indication from the record
All told, IBC‘s “argument reduces to a frontal attack on the merits of the arbitral award.” Id. at 35. But “[s]uch an attack is easily repulsed. It was the province of the arbitrator[] to scrutinize the language of the Agreement, weigh the conflicting evidence of the parties’ intentions, and determine the dimensions of” the Award. Id. (citing Major League Baseball Players Ass‘n v. Garvey, 532 U.S. 504, 509-10 (2001)). IBC‘s request to disturb the Award — either with a vacatur or a remand — faced a steep slope to begin with, and it has provided no argument strong enough to get it to the summit. And so, we affirm.
Costs to Appellee.