INTERNATIONAL AM & AW, D. 145 v. Modern Air Transp., Inc.

• Decision Date: 20 June 1974
• Docket Number: No. 73-1345.,73-1345.
• Citation: 495 F.2d 1241
• Parties: INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 145, Plaintiff-Appellee, v. MODERN AIR TRANSPORT, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

495 F.2d 1241 (1974)

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 145, Plaintiff-Appellee, v. MODERN AIR TRANSPORT, INC., Defendant-Appellant.

No. 73-1345.

United States Court of Appeals, Fifth Circuit.

June 20, 1974.

Richard R. Paige, Miami, Fla., James B. Rhoads, Robert J. Berghel, John Bacheller, Jr., Atlanta, Ga., for defendant-appellant.

Harold Mendelow, Miami, Fla., for plaintiff-appellee.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

GEE, Circuit Judge:

Modern Air appeals from the district court's enforcement of an arbitrator's award in favor of the Union. Concluding that the court reached the right result, although through the wrong process, we affirm.

In 1971 Modern Air contracted out some modification and repair work to an outside agency rather than assigning the work to its own facilities. The Union contended that the contracting-out violated the collective bargaining agreement. They sought reinstatement and back pay for laid-off mechanics. Modern Air and the Union duly submitted the grievance to arbitration under the procedure provided in the collective bargaining agreement. The arbitrator found that Modern Air had breached the contracting-out provision of the agreement, and he ordered back pay and reinstatement for those employees improperly laid off.

In respect to contracting-out, the agreement provided:

(a) All work normally performed in the Company\'s Maintenance Shops and facilities and airport stations by the employees covered by this Agreement is recognized as coming within the jurisdiction of the International Brotherhood of Teamsters and is covered by this Agreement. When aircraft is placed in the active service of the Company, the periodic maintenance on such aircraft shall be within the scope of this Agreement.

The parties agree that the Company may:

1. Continue to contract out work heretofore customarily contracted out.¹

. . . . . .

Initial modification of newly acquired airplanes and jet engine repair work were the subjects of the Union's grievances. On the evidence submitted to him, the arbitrator found that Modern Air had contracted out the bulk of the initial modification work but that the bargaining unit employees had performed some of that work. As to the jet engine repair, he found that the amount of contracting-out had varied over the years according to Modern Air's facilities and other contingencies but, although it had contracted out much of the engine repair, it also had performed a significant amount of the work in its own facilities.

This appeal focuses on the arbitrator's and the district court's interpretation of the term "customarily" in subparagraph 1. The arbitrator reasoned that:

. . . I do not share the Company\'s apparent view that so long as there was substantial contracting out of certain work it may "continue to contract out such work" because of subparagraph 1 of subsection (a). To my mind, in the light of the basic thrust of subsection (a) to place "work normally performed" in the bargaining unit and in view of the limitations specified in subparagraph 4 of subsection (a) with regard to contract out "any work", there would appear to be and sic implication in the use of the words "customarily" in subparagraph 1 of subsection (a) that the authority specified therein relates to work that has been exclusively contracted out. Stated differently, it is my view that subparagraph 1 does not refer to work which has been both contracted out as well as performed by the bargaining unit.²

The district judge decided to "enforce the award for reasons completely different from those in the arbitrator's report: Where the arbitrator substituted the word `exclusively' for the word `customarily,' as it is used in subparagraph (a)1 . . ., it is completely improper." But the court went on to examine the facts in light of its own interpretation of the agreement and concluded that the arbitrator would have reached the same result using "customarily."

On appeal, Modern Air contends that, when the district court said the arbitrator could not interpret "customarily" to mean "exclusively," the court had found that the arbitrator exceeded his authority. Modern Air goes on to insist that, when the court reached that conclusion, then it should have proceeded no further but should have simply denied enforcement.

On the other hand, the Union contends that the court did not substitute its judgment for that of the arbitrator; rather, the court made the proper inquiry and determined by examining the entire clause that the arbitrator acted properly and within the scope of the agreement.³

At this point, we insert the law. The genesis, of course, was the trilogy.⁴ The Court there delineated the limitations on the arbitrator:

. . . An arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator\'s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428 (1960).

We have expressed the limitation in terms of "foundation in reason or fact":

In the arbitration context, an award "without foundation in reason or fact" is equated with an award that exceeds the authority or jurisdiction on the arbitrating body. To merit judicial enforcement, an award must have a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the collective bargaining agreement. The arbitrator\'s role is to carry out the aims of the agreement, and his role defines the scope of his authority. When he is no longer carrying out the agreement or when his position cannot be considered in any way rational, he has exceeded his jurisdiction. The requirement that the result of arbitration have "foundation in reason or fact" means that the award must, in some logical way, be derived from the wording or purpose of the contract. Brotherhood of R R Trainmen v. Central of Georgia Ry. Co., 415 F.2d 403, 411-412 (5th Cir. 1969).

Additionally, in Safeway Stores v. American Bakery Workers Union Local 111, 5 Cir., 390 F.2d 79, 81-82, we said:

"If the award is arbitrary, capricious or not adequately grounded in the basic collective bargaining contract, it will not be enforced by the courts." . . . On its face the award should ordinarily reveal that it finds its source in the contract and those circumstances out of which comes the "common law of the shop."

See, Dallas Typographical Union v. A. H. Belo Corp., 372 F.2d 577 (5th Cir. 1967).

A concomitant narrow standard restricts judicial review of the arbitrator's broad authority:

. . . the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator\'s construction which was bargained for; and so far as the arbitrator\'s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his. Enterprise, supra, 363 U.S. at 599, 80 S.Ct. at 1362, 4 L.Ed.2d at 1429.

As we said in Safeway Stores, supra at 81:

. . . We must be vigilant that we are not slipping off into that habit, easy for Judges, of "deciding the merits in the guise of

...