Sunshine Min. Co. v. United Steelworkers of America, AFL-CIO, CLC

• Citation: 823 F.2d 1289
• Decision Date: 10 August 1987
• Docket Number: No. 85-4378,AFL-CI,CLC and L,85-4378
• Parties: 124 L.R.R.M. (BNA) 3198, 55 USLW 2583, 106 Lab.Cas. P 12,346, 23 Fed. R. Evid. Serv. 974 SUNSHINE MINING COMPANY, Plaintiff-Appellee, v. UNITED STEELWORKERS OF AMERICA,ocal 5089, United Steelworkers of America, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1289

823 F.2d 1289

124 L.R.R.M. (BNA) 3198, 55 USLW 2583,

106 Lab.Cas. P 12,346,

23 Fed. R. Evid. Serv. 974

SUNSHINE MINING COMPANY, Plaintiff-Appellee, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO, CLC and Local 5089, United Steelworkers of America, Defendants-Appellants.

No. 85-4378.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 2, 1986.

Decided March 25, 1987.

As Amended Aug. 10, 1987.

Rudolph L. Milasich, Jr., Pittsburgh, Pa., for defendants-appellants.

James E. Ruyle, Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before BROWNING, Chief Judge, WRIGHT, Circuit Judge, and ORRICK, ^* District Judge.

ORRICK, Senior District Judge:

Appellants, United Steelworkers of America, AFL-CIO, and Local 5089, United Steelworkers of America (the "Union"), appeal from the judgment and order of the district court, which vacated portions of an arbitration award, closed the arbitration hearing, and denied the grievance filed on behalf of Russell Carlson by the Union against appellee, Sunshine Mining Company (the "Company"). For the reasons set forth below, we reverse the decision of the district court with instructions to remand the grievance to the arbitrator.

I

The controversy in issue involves the discharge of a miner, Russell Carlson, by the Company on April 19, 1984. Carlson worked at the Company for a total of seven years. In 1981, he received a head injury in a rock fall and was referred to a neurologist. The neurologist noted no signs of permanent psychological problems, although he recommended that Carlson engage in surface work for several months. Carlson eventually returned to underground mining in January 1982. Between February and October of 1983, Carlson accumulated a number of unexcused absences and was discharged. During the ensuing grievance, the Company agreed to reinstate Carlson on the condition that he attempt to improve his attitude toward his work.

Carlson returned to work, although certain problems persisted. First, Carlson was inclined to mutter obscenities about his supervisor and management officials; second, other workers believed Carlson to be "nervous," and harassed him by throwing firecrackers at him in the mine, and poking him in the darkened elevator as it descended into the mine.

On April 9, 1984, Carlson's supervisor instructed him to "raise the crib" at the 4,200 foot level of the mine before blasting. Carlson began cursing loudly. At the end of the shift, when the crew assembled next to the elevator, Carlson again shouted profanities at his supervisor, and continued this verbal abuse as the crew rode the elevator out of the shaft. The supervisor testified that he had never seen such a strong and extended emotional reaction by a worker in the mine. Other crew members reported that Carlson appeared to be mentally unstable. Carlson himself could not remember the details of the incident, although he stated that he had "spells" or hallucinations after which he could not remember what he had said or done. Carlson had previously taken anti-convulsants as prescribed by the neurologist, but he was not taking any medication on the day in question.

The following day, Carlson received a notice of suspension prior to discharge. He was then terminated for insubordination. The Union filed a grievance on Carlson's behalf, and when the issue remained unsettled, it was referred to arbitration in accordance with Article XIV of the 1980 Collective Bargaining Agreement between the parties. ¹

The parties stipulated that the issue before the arbitrator was as follows: "Was the grievant discharged for just cause? If not, what is the appropriate remedy?" The relevant provision of the Collective Bargaining Agreement vested "the sole direction of the working forces, including * * * the right to * * * discharge for cause" in the Company, subject to the other provisions of the agreement. Collective Bargaining Agreement, Art. XXVI, Control in Management.

A hearing was held on May 31, 1984, before Arbitrator Carlton J. Snow, at which evidence was presented and oral argument made. The parties elected to submit post-hearing briefs. The arbitrator officially closed the hearing on July 12, 1984. On August 13, 1984, the arbitrator issued the award. He concluded that there was a serious question concerning Carlson's mental stability at the time of the incident that led to his discharge. The arbitrator found that Carlson had engaged in insubordinate conduct, but reasoned that if he were mentally ill at the time, the illness, under certain circumstances, would preclude a finding of just cause for discharge.

Recognizing the uniqueness of the situation, the arbitrator framed a unique award. The arbitrator found that the evidence supported "a conclusion that the grievant's mental instability may have been a significant factor" in his discharge, but that there was insufficient evidence to determine whether Carlson's mental instability was temporary, or whether it rendered him incapable of continued performance of his duties. Stating that a final determination as to whether Carlson's discharge had been for cause could be made only if expert evidence concerning his psychological condition became part of the record, the arbitrator ordered the parties to select a psychiatrist to examine Carlson. The psychiatrist was to submit his or her findings concerning Carlson's mental condition at the time of the incident, and at the present time. If the psychiatrist concluded that Carlson suffered from no mental illness, the discharge was to be sustained. If the psychiatrist concluded that Carlson was mentally ill at the time of the incident, and his prognosis for recovery would preclude underground mining work, the discharge would similarly be sustained. However, if the psychiatrist determined that Carlson was mentally ill on April 9, but had recovered sufficiently to work underground, he was to be reinstated without back pay but with seniority. The arbitrator stated that he would retain jurisdiction in the matter for sixty days following issuance of a psychiatric report, as authorized by the parties.

The Company requested that the arbitrator reconsider his decision, arguing that he had no authority to reopen the record for post-hearing evidence, or to require the Company to pay part of the costs of the psychiatric examination. This request was denied. On October 11, 1984, the Company requested a stay of implementation of the award, stating that if the Union undertook to have Carlson examined, it would not be responsible for any portion of the fee, pending the outcome of litigation it intended to file. The Company then filed this action in the district court to vacate the arbitration award. The Union answered and filed a counterclaim to compel enforcement of the award.

After a hearing on cross-motions for summary judgment, the district court entered a judgment in favor of the Company. The court ordered the record closed and the grievance denied on the basis of the arbitrator's finding of insubordination. In its contemporaneously filed memorandum opinion and order, the district court noted that "[a]n arbitrator may hold the record open for the inclusion of additional evidence." Nonetheless, it found that the parties had been denied due process by the arbitrator's conditioning of his final determination, after closing the record, on a conclusion to be reached by a psychiatrist with respect to Carlson's mental illness. Furthermore, the district court found that the arbitrator acted beyond his authority in ordering the psychiatric examination, which it deemed to be an improper delegation of the arbitrator's fact-finding function.

II

The question before this court is whether the district court properly vacated portions of the arbitral award, closed the record, and denied the grievance when it granted summary judgment. A district court's grant of summary judgment vacating an arbitration award is reviewed de novo. New Meiji Market v. United Food & Commercial Workers Local # 905, 789 F.2d 1334, 1335 (9th Cir.1986).

The scope of review of an arbitrator's decision is extremely narrow. Edward Hines Lumber Co. v. Lumber & Sawmill Workers Local No. 2588, 764 F.2d 631, 634 (9th Cir.1985). It is well established that the courts must not reexamine the merits of an arbitral award, because to do so would undermine the federal policy of settling labor disputes by arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Because arbitration is an alternative to the judicial resolution of disputes, this extremely low standard of review is necessary to prevent the "judicialization" of the arbitration process. E.I. DuPont de Nemours & Co. v. Grasselli Employees Independent Association of East Chicago, Inc., 790 F.2d 611, 614 (7th Cir.1986).

As long as the arbitrator's award "draws its essence" from the collective bargaining agreement, it must be enforced. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361; Broadway Cab Cooperative, Inc. v. Teamsters & Chauffeurs Local Union No. 281, 710 F.2d 1379, 1382 (9th Cir.1983). An award is said to "draw its essence" from the contract if it is based on the contractual language and the parties' conduct. Howard P. Foley Co. v. International Brotherhood of Electrical Workers, Local 639, 789 F.2d 1421, 1422-1423 (9th Cir.1986). Only if the arbitrator dispenses "his own brand of industrial justice" should the award be vacated. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361. The Supreme Court recently reaffirmed this deferential standard of review in W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983).

When the parties include an arbitration clause in their collective-bargaining agreement, they choose to have disputes concerning constructions of the contract resolved by an...