Citations
- 317 F.3d 350
Full opinion text
ORDER OF THE COURT
The panel of judges that rendered the decision in this case having voted to deny the petition for rehearing and the suggestion for rehearing en banc having been carefully considered by the judges of the Court in regular, active service and a majority of said judges not having voted to order that the appeal be heard or reheard by the Court en banc, with one judge dissenting,
It is ordered that the petition for rehearing and the suggestion for rehearing en banc, be denied. Dissent follows.
LYNCH, Circuit Judge
(Dissenting).
I dissent from the denial of en banc review. The outcome of this case — which is based on two. prior First Circuit cases, Georgia-Pacific Corp. v. Local 27, United Paperworkers International Union, 864 F.2d 940 (1988), and S.D. Warren Co. v. United Paperworkers’ International Union, 845 F.2d 3 (1st Cir.1988) — is, to my view, contrary to the deference to arbitrators required by United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). It is true that Misco warns that arbitrators may not rewrite contracts and substitute their own notions of industrial justice. See id. at 36, 108 S.Ct. 364. The majority opinion finds that is what the arbitrator did here, a conclusion I think erroneous and contrary to Misco’s mandate that federal courts must defer to the arbitrator so long as he is “even arguably construing or applying the contract and acting within the scope of his authority.” Id. at 38, 108 S.Ct. 364; accord Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001); E. Assoc. Coal Corp. v. United Mine Workers, 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000).
The majority’s opinion intensifies a circuit split. It runs contrary to the law of other circuits which carefully and explicitly delimit the scope of judicial review of arbi-tral awards on the ground that the arbitrator has exceeded his authority. See Madison Hotel v. Hotel & Rest. Employees, Local 25, 144 F.3d 855, 858-59 (D.C.Cir.1998)(