AMALGAMATED FOOD & A. WKRS. U., LOCAL 56 v. GREAT A. & P. CO., 17440.

• Decision Date: 16 July 1969
• Docket Number: No. 17440.,17440.
• Citation: 415 F.2d 185
• Parties: AMALGAMATED FOOD & ALLIED WORKERS UNION, LOCAL 56, and John Sichik v. The GREAT ATLANTIC AND PACIFIC TEA CO., D. V. Stiffler, and William N. Loucks, the Great Atlantic and Pacific Tea Company and D. V. Stiffler, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

415 F.2d 185 (1969)

AMALGAMATED FOOD & ALLIED WORKERS UNION, LOCAL 56, and John Sichik v. The GREAT ATLANTIC AND PACIFIC TEA CO., D. V. Stiffler, and William N. Loucks, the Great Atlantic and Pacific Tea Company and D. V. Stiffler, Appellants.

No. 17440.

United States Court of Appeals Third Circuit.

Argued March 4, 1969.

Decided July 16, 1969.

Miles W. Kirkpatrick, Morgan, Lewis & Bockius, Phildelphia, Pa. (Robert H. Kleeb, Philadelphia, Pa., on the brief), for appellants.

David Seliger, Plone, Tomar, Parks & Seliger, Camden, N. J. (Howard S. Simonoff, Eleanor H. Klein, Camden, N. J., on the brief), for appellees.

Before KALODNER, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

KALODNER, Circuit Judge.

In the instant case the District Court vacated the Award of the Arbitrators on the ground that "the arbitrators' decision as to the scope of the submission was in violation of the terms of the collective-bargaining agreement, and that the decision reached is so unreasonable as to amount to a lack of due process." The Arbitrators had refused to consider the issue as to whether a discharged employee had committed a theft from his employer on the ground that the issue had not been submitted to them and, for reasons later stated, limited their consideration to the single issue whether the penalty of discharge suffered by the employee violated the terms of the collective bargaining agreement.

The threshhold question presented by this appeal is whether the District Court acted within the permissible scope of the judicial review of an arbitration award.

The facts critical to our disposition may be summarized as follows:

On April 7, 1965, the appellant, John Sichik was discharged by defendant Great Atlantic and Pacific Tea Company ("A&P"), after 32 years of service, for allegedly stealing four cans of crab meat. Sichik denied that he had stolen the crab meat and asked Local 56, Amalgamated Food and Allied Workers Union ("Union"), of which he was a member, to intervene in his behalf. There followed two discussions between Joseph C. Nettleton, Vice-President and Business Agent of the Union, and representatives of A&P. At both discussions Nettleton expressed the view that there was insufficient evidence to justify the discharge and indicated that Union would seek arbitration.¹ Thereafter, on May 21, 1965, the Union Executive Board decided to request arbitration of Sichik's discharge.

On May 27, 1965, Nettleton sent the following letter to the A&P Personnel Manager:

"This is to advise you that the Union intends to institute arbitration proceedings in behalf of John Sichik.

"The matter was brought before our Executive Board, and in view of the fact that John Sichik has 32 years of seniority, they felt that dismissing him from his job was too severe.

"We will be available to discuss this matter with you. If we do not hear from you, we will go ahead with arbitration proceedings."

When A&P did not respond to this letter, Union's attorneys wrote on June 16, 1965, stating that "pursuant to the terms of the collective bargaining agreement we request that the matter of the discharge of John Sichik be submitted to arbitration."

A&P failed to reply to this letter, and on September 7, 1965, Union counsel sent another letter, noting that they had received no answer to their letter of June 16, in which they had requested that "the discharge of John Sichik be submitted to arbitration."

Again A&P failed to respond, and on September 14, 1965, Union counsel sent the following letter to the American Arbitration Association:

"Pursuant to the terms of the contract between Local 56 and A&P, we request the submission of the discharge of John Sichik to arbitration. Please send both parties lists of proposed arbitrators."

A&P, though informed by the Association of its right to file an answering statement, did not do so.

A Board of Arbitrators was then constituted.

Nettleton was appointed to the Board as Union's representative; D. V. Stiffler as A&P representative; and they selected Dr. William N. Loucks, as Impartial Chairman of the Board.

The Board conducted hearings on January 19 and March 17, 1966 and met in executive sessions on April 14 and 28 and June 14, 1966.

A&P contended at the January 19th hearing that Nettleton's letter of May 27, 1965 was a Union concession that Sichik had committed the theft offense and accordingly Union had submitted for arbitration only the issue of severity of the discipline of dismissal. That contention was immediately disputed by Union which urged that the issue submitted for arbitration was whether Sichik was discharged for just cause. Evidence was adduced by both parties at the first hearing on the issue whether Sichik was guilty of the alleged theft.

The parties then filed briefs with the Board bearing on the scope of the issue submitted for arbitration. A&P in its brief stated, inter alia:

"The sole issue in this case is whether the grievant, John Sichik, took property, without paying for it, from the store in which he was employed in violation of Company policy."

At the April 28, 1966, executive session the Impartial Arbitrator presented a draft of a proposed award which provided, inter alia, that:

"The Board of Arbitration hereby directs that the Company shall reinstate John Sichik as its employee with full compensation for wages which he may have lost during the period he has been in discharge status, and without impairment of his seniority or rights dependent thereupon.

"The Board hereby recommends that, immediately upon his reinstatement as an employee, John Sichik be transferred to another of the Company\'s stores without reduction in his rate of pay.

"This direction and this recommendation are based upon the following findings by the Board: (1) The full record of these arbitration proceedings creates suspicion that the grievant was guilty of the offense for which he was discharged; (2) The Board has found it impossible to resolve unanimously certain significant doubts held by a majority of the Board members that the record per se fully convinces that the grievant was in fact guilty of the offense charged."

The proposed draft was withdrawn by the Impartial Arbitrator when Arbitrator Stiffler refused to subscribe to it.

At the June 14th session, the Impartial Chairman submitted the draft of a second proposed Award, which provided in relevant part:

"The Union\'s demand that John Sichik be reinstated to the position he held with the Company on April 6, 1965, with full seniority and all other rights guaranteed him under the agreement, and with reimbursement for all monetary losses that he sustained due to his discharge, is hereby dismissed."

The stated Award was joined in by Impartial Arbitrator Loucks and A&P Arbitrator Stiffler. Union Arbitrator dissented.

In the "Opinion of Impartial Arbitrator", filed by Dr. Loucks, he made it clear that he and Stiffler had not considered the issue whether Sichik had committed a theft on the ground that it had not been submitted for arbitration by Union, and that they deemed the arbitration issue to be confined to the severity of the penalty of discharge meted out by A&P to Sichik.

The Opinion declared that it had premised its determination as to the limited scope of the issue submitted for arbitration on the May 27, 1965 letter written to A&P by Nettleton in his capacity as vice-president and business agent of Union, earlier here set forth.

In doing so the Opinion stated:

"The Impartial Chairman wishes to make it completely clear that the above conclusions which control his vote do not involve his own personal judgment on whether or not the testimony before the Board sustains a factual finding on whether Mr. Sichik did or did not steal Employer\'s property on April 6, 1965. The letter of May 27, 1965 (Company Exhibit #1), for reasons which he has elaborated earlier in this Opinion, removed that question from the legitimate scope of considerations controlling the Impartial Arbitrator\'s vote as a Board member."

In his "Dissenting Opinion" Union Arbitrator Nettleton challenged the determination that his letter of May 27, 1965 had limited the scope of arbitration to the issue of penalty, and asserted that the issue submitted by the Union for arbitration was the "just cause" of Sichik's dismissal, viz., Sichik's innocence or guilt with respect to the alleged theft, and that the Arbitration Board had in fact permitted evidence to be adduced bearing on the "innocence or guilt" question.

In doing so, the Dissenting Opinion stated in part:

"After hearings were concluded, the Impartial Arbitrator, after time for study and consideration of all the evidence, prepared a proposed opinion and award, which he sought to have adopted unanimously and in which the Board of Arbitration would have directed that the Company reinstate John

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