American Postal Workers Union, AFL-CIO v. U.S. Postal Service, AFL-CI

• Decision Date: 21 April 1995
• Docket Number: A,No. 93-5397,AFL-CI,93-5397
• Citation: 52 F.3d 359,311 U.S. App. D.C. 210
• Parties: 149 L.R.R.M. (BNA) 2070, 311 U.S.App.D.C. 210, 63 USLW 2720, 130 Lab.Cas. P 11,321 AMERICAN POSTAL WORKERS UNION,ppellant, v. UNITED STATES POSTAL SERVICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 359

52 F.3d 359

149 L.R.R.M. (BNA) 2070, 311 U.S.App.D.C.

210, 63 USLW 2720,

130 Lab.Cas. P 11,321

AMERICAN POSTAL WORKERS UNION, AFL-CIO, Appellant, v. UNITED STATES POSTAL SERVICE, Appellee.

No. 93-5397.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 3, 1995.

Decided April 21, 1995.

Appeal from the United States District Court for the District of Columbia (93cv0126).

Darryl J. Anderson, Washington, DC, argued the cause and filed the briefs for appellant.

Robert L. Shapiro, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., and Brian M. Reimer, Atty., U.S. Postal Service, Washington, DC.

Before: WALD, SILBERMAN, and TATEL, Circuit Judges.

SILBERMAN, Circuit Judge:

American Postal Workers Union, AFL-CIO, appeals from a district court order enforcing an arbitrator's award in favor of the United States Postal Service. Appellant claims that the award was procured through "undue means," because the arbitrator considered an arrest record that had been expunged under Connecticut law. We affirm the district court.

I.

Madeline Goodwin was employed at the Post Office in Stamford, Connecticut. On May 29, 1991, Goodwin was involved in an incident with two supervisors, Robert Townes, Jr., and George Reale. According to Townes and Reale, Goodwin left her work area, disobeyed orders to return to her work, became verbally abusive, struck Townes on the arm, and was generally "disrespectful." After several unsuccessful attempts to persuade Goodwin to leave the workplace, Reale contacted the postal police, who in turn asked the local police to escort Goodwin out of the postal facility. The local police arrived, Goodwin refused to leave the facility, and she was arrested and removed. Criminal charges were brought against Goodwin based upon her conduct.

Goodwin disputed the supervisors' characterization of the events. Their version was reflected, however, in a Supplemental Investigative Memorandum Postal Inspector Feeney drafted in July 1991. Goodwin did not offer Feeney a competing version, despite the Inspector's efforts to get her statement. The state law criminal charges against Goodwin stemming from the incident were dropped on August 5, 1991, in a proceeding before a state judge. Feeney submitted a final Supplemental Investigative Memorandum on August 14, 1991.

The Postal Service then discharged Goodwin, who also had a past record of disciplinary infractions. On behalf of Goodwin, the American Postal Workers' Union brought a grievance challenging Goodwin's discharge, which ultimately led to arbitration. The arbitrator credited the testimony of Townes and Reale, and found Goodwin's version of the events in question "unbelievable"; she relied at least in part on the Connecticut arrest record, over the objection of the union representative, as "probative support for the credible testimony" of Townes and Reale. (The union representative objected on grounds that the charges against Goodwin had been dropped.) The arbitrator thus determined that the supervisors had acted properly and that Goodwin's conduct in light of her past record was sufficient to support removal.

The union brought suit in district court to overturn the arbitrator's award. It was, and is, claimed that the Postal Service procured the award through "undue means" in violation of Sec. 10(a) of the Federal Arbitration Act. See 9 U.S.C. Sec. 10(a) (1988) (award may be vacated where "procured by corruption, fraud, or undue means."). The alleged "undue means" was the introduction into evidence of Goodwin's arrest, notwithstanding a Connecticut statute which bans the "dissemination of an arrest record by any law enforcement agency." See CONN.GEN.STAT. Sec. 54-142a(e) (West Supp.1995) ("Erasure of criminal records"). The district court rejected the union's claim, concluding that the union had waived its objection to the disputed evidence by not raising the Connecticut statute before the arbitrator, and that, in any event, neither "fraud" nor the term "undue means" encompasses the union's claim. This appeal followed.

II.

The union reiterates before us its argument that the alleged violation of the Connecticut statute constituted "undue means." It claims that its representative before the arbitrator, a non-lawyer, could not be expected to be familiar with Connecticut law, so that the district court erred in concluding that the union waived its claim by not raising it before the arbitrator. The district court, it is argued, improperly extended to an "undue means" case a requirement courts have imposed on parties seeking to set aside awards on the grounds of fraud. See, e.g., A.G. Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401, 1404 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 970, 122 L.Ed.2d 126 (1993). The Service responds that there is no good reason why the union was not obliged to raise its objection relating to the arrest record before the arbitrator--whether its claim is based on fraud or undue means. The union, after all, chose to use a business agent as its advocate and it must live with the consequences. The Service, moreover, was not aware of the Connecticut statute, so even if it could be thought "a law enforcement agency," it should not be charged with "procuring" (i.e., actively gaining or purposefully influencing) the award through undue means. Finally, the parties dispute whether or not the arrest record was actually "disseminated" within the meaning of the Connecticut statute, and whether it was decisive in contributing to the award.

Our scope of review of an arbitrator's award interpreting a collective bargaining agreement is extremely narrow. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350-51, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); ("Steelworkers Trilogy" ); Hotel Assoc. of Washington, D.C., Inc. v. Hotel & Restaurant Employees Union, 963 F.2d 388, 389 (D.C.Cir.1992); Kanuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C.Cir.1991). Indeed, the premise of appellant's argument--that the FAA controls this case--is by no means obvious. The Act does not apply to "contracts of employment,"9 U.S.C. Sec. 1, and federal courts look to it only as guidance in fashioning federal common law governing suits for breach of contract (which include challenges to arbitrator's awards) under Sec. 301 of the Federal Labor-Management Relations Act. See United Paperworkers Int'l Union v. Misco, Inc., ...