Glass, Molders, Pottery, Plastics and Allied Workers Intern. Union, AFL-CIO, CLC, Local 182B v. Excelsior Foundry Co.

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before POSNER, Chief Judge, and ESCHBACH and MANION; POSNER
• Citation: Glass, Molders, Pottery, Plastics and Allied Workers Intern. Union, AFL-CIO, CLC, Local 182B v. Excelsior Foundry Co., 56 F.3d 844 (7th Cir. 1995)
• Decision Date: 13 June 1995
• Docket Number: LOCAL,No. 94-3734,AFL-CI,CL,94-3734
• Parties: 149 L.R.R.M. (BNA) 2538, 63 USLW 2794, 130 Lab.Cas. P 11,349 GLASS, MOLDERS, POTTERY, PLASTICS AND ALLIED WORKERS INTERNATIONAL UNION,182B, Plaintiff-Appellant, v. EXCELSIOR FOUNDRY COMPANY, et al., Defendants-Appellees.

Page 844

56 F.3d 844

149 L.R.R.M. (BNA) 2538, 63 USLW 2794,

130 Lab.Cas. P 11,349

GLASS, MOLDERS, POTTERY, PLASTICS AND ALLIED WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, LOCAL 182B Plaintiff-Appellant, v. EXCELSIOR FOUNDRY COMPANY, et al., Defendants-Appellees.

No. 94-3734.

United States Court of Appeals Seventh Circuit.

Argued April 13, 1995.

Decided June 13, 1995.

Arthur J. Martin, Charles A. Werner, Schuchat, Cook & Werner, St. Louis, MO, Carl S. Yaller (argued), Glass, Molders, Pottery, Plastics & Allied Workers, Media, PA, for plaintiff-appellant.

Brian McGovern (argued), Michael E. Kaemmerer, McCarthy, Leonard, Kaemmerer, Owen, Laderman & Lamkin, Chesterfield, MO, Lawrence F. Raniszeski, Colombo & Colombo, Bloomfield Hills, MI, for defendant-appellee.

Before POSNER, Chief Judge, and ESCHBACH and MANION, Circuit Judges.

POSNER, Chief Judge.

This appeal brings before us a doctrine of the law of arbitration that goes by the name of "functus officio." The term is Latin for "office performed" and in the law of arbitration means that once an arbitrator has issued his final award he may not revise it. Anderson v. Norfolk & Western Ry., 773 F.2d 880, 883 (7th Cir.1985); Domino Group, Inc. v. Charlie Parker Memorial Foundation, 985 F.2d 417, 420-21 (8th Cir.1993); Colonial Penn Ins. Co. v. Omaha Indemnity Co., 943 F.2d 327, 331-32 (3d Cir.1991); 3 Ian R. Macneil, Richard E. Speidel & Thomas J. Stipanowich, Federal Arbitration Law Sec. 37.6.1 (1994). The arbitrator has performed his office and having done so has been discharged from it.

When an employee of defendant Excelsior named Jackson flunked a test for cocaine, failed to complete a drug-rehabilitation program, and as a result was fired, his union filed a grievance which eventually went to arbitration. The arbitrator ordered Excelsior to reinstate Jackson "without backpay or fringe benefits, if he completes a company medically approved rehabilitation program within 60 days from the rendition of this award." The award was issued on May 6, 1993, so the 60 days ran out on July 5. The award did not say who would pay for the program. The cost of the program approved by the company was $3,000, and Jackson is not affluent. The program lasts only 28 to 30 days, so Jackson and the union had a little time, but only a little time, to find out who would pay before he had to enroll in order to make the 60-day deadline. After fruitless negotiations with the company, the union on May 24 asked the arbitrator to clarify the award. On June 2, in response to this request the arbitrator stated that he had not intended to require the company to pay; Jackson would have to pay. After working out an installment plan for paying for the program, Jackson finally enrolled. But by now the July 5 deadline was looming, and it was not until July 27 that he completed the program. This was more than 60 days after the arbitrator's award had been rendered. But shortly before Jackson completed the program his union representative had called the arbitrator to ask when the 60-day period for the completion of the rehabilitation program had started to run. On July 30 the arbitrator wrote the parties that it had started to run on June 2, the date of his letter clarifying the award (rather than May 6, the date of the award), which meant that Jackson had completed the program within the deadline after all. Excelsior nevertheless refused to reinstate Jackson, so the union brought this suit to enforce the arbitrator's award and thus compel reinstatement. 29 U.S.C. Sec. 185. The district judge granted summary judgment for the employer on the ground that the arbitrator's action in extending the period for completion of the drug-rehabilitation program was forbidden by the doctrine of functus officio.

The employer waxes indignant over the union's having asked the arbitrator ex parte, and therefore in violation of the rules of the American Arbitration Association, which the parties had agreed would govern the arbitration, when the 60-day period had begun to run. The violation was harmless, however, and possibly condoned or even invited. Time was of the essence. The employer had refused to cooperate in getting either the issue of payment or the issue of the deadline back before the arbitrator. One of the employer's representatives had told the union's representative to "do what you have to do" when the union's representative said he wanted to ask the arbitrator for clarification, and this might have been construed as authorization to approach the arbitrator ex parte, provided, of course, that the union did not use the occasion to argue its case. It did not. And even if an improper, uncondoned ex parte contact occurred, this would not in itself warrant the vacating of the arbitrator's award. An ex parte contact is not an automatic ground for invalidating such an award. The contact would have to trigger one of the recognized grounds for vacation, such as partiality on the part of the arbitrator, Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019, 1025 (9th Cir.1991); Toyota of Berkeley v. Automobile Salesmen's Union, 834 F.2d 751, 755 (1987), as amended, 856 F.2d 1572 (9th Cir.1988), and this is not argued. These cases, by the way, like many cited in this opinion, involve general commercial arbitration rather than labor arbitration. But the differences between the two types of case in regard to the standards for vacating arbitrators' awards are subtle, cf. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 40 and n. 9, 108 S.Ct. 364, 372 and n. 9, 98 L.Ed.2d 286 (1987), and we are given no reason to suppose that they extend to matters of ex parte contacts.

The issue of ex parte contacts is a red herring. The district court's decision must stand or fall on the applicability of the doctrine of functus officio.

The doctrine originated in the bad old days when judges were hostile to arbitration and ingenious in hamstringing it. Courier-Citizen Co. v. Boston Electrotypers Union No. 11, 702 F.2d 273, 278 (1st Cir.1983); Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 982-85 (2d Cir.1942) (Frank, J.). It is said to have been "nourished by the primitive view of the solemnity of all judgments." La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572 (3d Cir.1967). Today, riddled with exceptions, it is hanging on by its fingernails and whether it can even be said to exist in labor arbitration is uncertain. See, e.g., Newman v. Corrado, 897 F.2d 1579, 1583 (Fed.Cir.1990); Red Star Express Lines v. International Brotherhood of Teamsters, 809 F.2d 103, 106 (1st Cir.1987); id. at 108 (concurring opinion); Local P-9 v. George A. Hormel & Co., 776 F.2d 1393, 1394 n. 1 (8th Cir.1985); United Steelworkers of America v. Ideal Cement Co., 762 F.2d 837, 841 n. 3 (10th Cir.1985); Industrial Mutual Association, Inc. v. Amalgamated Workers, 725 F.2d 406, 412 n. 3 (6th Cir.1984).

The doctrine is based on the analogy of a judge who resigns his office and, having done so, naturally cannot rule on a request to reconsider or amend his decision. Arbitrators are ad hoc judges--judges for a case; and when the case is over they cease to be judges and go back to being law professors or businessmen or whatever else they are in private life, like Cincinnatus returning to his plow. The flaw in the analogy is that the judge's resignation does not deprive litigants of an opportunity to seek reconsideration of his decisions. Motions to reconsider are simply directed to another judge. If the "resignation" of the arbitrator from the case, in accordance with the doctrine of functus officio, disables him from considering a motion for reconsideration, clarification, amendment, or other modification, there is nobody to whom the parties can turn. The result would be a gap in the system of arbitral justice that would make very little sense that we can see. Not no sense. Once they return to private life, arbitrators are less sheltered than sitting judges, and it is feared that disappointed parties will bombard them with ex parte communications and that the arbitrators, not being professional judges or subject to the constraints of judicial ethics, will yield, as in Domino Group v. Charlie Parker Memorial Foundation, supra, 985 F.2d at 420--and as in this case, for that matter, though here the ex parte communication was harmless.

Concern about ex parte communications with arbitrators strikes us as a better reason for barring such communications than for denying arbitrators all power to revisit their awards. To impose such a bar would be to clothe arbitrators with an ill-fitting mantle of infallibility. (The implication of infallibility may seem paradoxical in light of the origin of the doctrine in the era of hostility to arbitration. But denying arbitrators the ordinary powers of judges reduces the utility of arbitration and is thus consistent with that hostility.) In recognition of the fallibility of earthly lawgivers, every court, and every administrative agency that exercises adjudicative authority, has been understood to have (at least until the matter is regularized in rules, such as Fed.R.Civ.P. 60) the inherent power to reconsider its decisions within a reasonable time. Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118 (1936) (Cardozo, J.); Eifler v. Office of Workers' Compensation Programs, 926 F.2d 663, 666 (7th Cir.1991); In re Met-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988); United States v. Angiulo, 755 F.2d 969, 972 (1st Cir.1985); Patton v. Secretary of Dept. of Health & Human Services, 25 F.3d 1021, 1027 (Fed.Cir.1994) (dictum). Arbitrators are no more infallible than judges. They make mistakes and overlook contingencies and leave much to implication and assumption--as the present case illustrates. The arbitration award says that Jackson has 60 days to complete a rehabilitation program. Period. But many drug-rehabilitation programs have long...