Jays Foods v. Chemical Allied Products, AFL-CI

• Decision Date: 28 April 2000
• Docket Number: D,No. 99-2807,AFL-CI,99-2807
• Citation: 208 F.3d 610
• Parties: (7th Cir. 2000) Jays Foods, L.L.C., Plaintiff-Appellee, v. Chemical & Allied Product Workers Union, Local 20,efendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 610

208 F.3d 610 (7th Cir. 2000)

Jays Foods, L.L.C., Plaintiff-Appellee, v. Chemical & Allied Product Workers Union, Local 20, AFL-CIO, Defendant-Appellant.

No. 99-2807

In the United States Court of Appeals For the Seventh Circuit

Argued January 21, 2000

Decided March 31, 2000

Rehearing and Rehearing En Banc

Denied April 28, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 6227--Wayne R. Andersen, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Flaum and Diane P. Wood, Circuit Judges.

Posner, Chief Judge.

We write to untie a procedural knot partly of our own tying. Jays Food and a local of the chemical workers union have a collective bargaining agreement that provides for arbitration of disputes arising under it. In 1997 an arbitrator determined that Jays had violated the agreement by starting a third shift in a manner that reduced the paid hours of work of employees on the first and second shifts. Jays filed suit in federal district court to vacate the arbitrator's decision, and the union counterclaimed to confirm it. 9 U.S.C. sec. 9; 29 U.S.C. sec. 185. The district court ruled that the arbitrator had exceeded his authority under the collective bargaining agreement, and remanded the matter to the arbitrator "for further determination," adding that by doing this the court was "terminating case." After the arbitrator rendered his decision on remand, this time in favor of Jays, the union appealed from the order of remand. We dismissed the appeal in an unpublished order, on the ground that an order by a district court remanding a case to an arbitrator is not a final, appealable decision within the meaning of 28 U.S.C. sec. 1291 unless the remand requires a merely ministerial act, such as calculating interest when the period for which the calculation must be made, the interest rate, the principal to which the rate is to be applied, and whether interest is simple or compound have all been determined. Shearson Loeb Rhoades, Inc. v. Much, 754 F.2d 773, 776-78 (7th Cir. 1985); United Steelworkers v. Aurora Equipment Co., 830 F.2d 753, 754 (7th Cir. 1987). We had pointed out in these cases that if more is required, allowing an appeal would delay the ultimate resolution of the parties' dispute. More was required here. The arbitrator had written an opinion that did not satisfy the district judge, but the judge sent it back to him to make a new award rather than telling him to rule in favor of Jays.

It is true that by saying "terminating case" the district court might have been thought to be issuing a final judgment; but all he might have meant was that he was terminating the immediate proceeding before him, that is, the motion to vacate the arbitrator's award and the countermotion to confirm it. And whatever he meant, that may be all he did. For as we said in Chrysler Motors Corp. v. International Union, Allied Industrial Workers of America, 909 F.2d 248, 249 (7th Cir. 1990) (emphasis added), "The ground of the motion to dismiss the employer's appeal is that the order confirming the arbitrator's award is not final, since the matter of back pay remains to be determined by him. It is final in the district court, but under our cases that may not be good enough. Provided that the matter left for determination is not merely ministerial, . . . an order that does not determine the entire substantive relief to which the plaintiff is entitled is not a final decision even if the loose ends remain to be tied up by a decision-maker other than the district judge."

But we were wrong, not in general but with reference to the appealability of orders remanding cases to arbitrators, in thinking that the district court's order of remand was not immediately appealable. Congress had in 1988 amended the Federal Arbitration Act to make orders vacating arbitral awards appealable immediately, though nonfinal, 9 U.S.C. sec. 16(a)(1)(E); Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 979-80 (7th Cir. 1999), unless the purpose of the remand was merely to enable the arbitrator to clarify his decision in order to set the stage for informed appellate review. Virgin Islands Housing Authority v. Coastal General Construction Services Corp., 27 F.3d 911, 913-14 (3d Cir. 1994). That was not the purpose here. Our error was harmless, however, because the appeal was in any event untimely. The district court had issued its order of remand on May 11, 1998, and the union did not file its notice of appeal until August 19, which was more than 30 days later.

We ended our order dismissing the union's appeal by saying that "the parties must proceed back through the federal courts to confirm or vacate the second award." This Delphic utterance left unexplained both how the union could challenge the district court's first decision, the decision vacating the arbitrator's award, which had been in the union's favor, and why the parties would have to file a brand-new suit (if that's what "proceed back" meant) in the district court. Let's take the second question first. There is no hard-and-fast rule, except in the Ninth Circuit, Shapiro v. Paradise Valley Unified School Dist. No. 69, 152 F.3d 1159 (9th Cir. 1998) (per curiam), and, by virtue of statute, in the social security area, 42 U.S.C. sec.sec. 405(g); Shalala v. Schaefer, 509 U.S. 292 (1993); Richmond v. Chater, 94 F.3d 263, 266-70 (7th Cir. 1996); Raitport v. Callahan, 183 F.3d 101 (2d Cir. 1999) (per curiam); cf. Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, supra, 195 F.3d at 979-80, and perhaps other specialized areas with which we are not familiar, about when a remanding court loses jurisdiction over the case, thus necessitating a fresh proceeding of some sort after the remand to bring the issue back to that court. The presumption, however, is in favor of relinquishment. For when a court makes a limited remand unlikely to resolve the case but intended rather to assist the court in making its decision (a typical example being a remand to enable the district court to decide whether to enter a Rule 54(b) order to enable us to exercise appellate jurisdiction), the court will either state that it is retaining jurisdiction, e.g., Boyko v. Anderson, 185 F.3d 672 (7th Cir. 1999); Alexander v. Chicago Park District, 773 F.2d 850, 857 (7th Cir. 1985); United States v. Doe, 63 F.3d 121, 131 (2d Cir. 1995); Caterpillar, Inc. v. N.L.R.B., 138 F.3d 1105, 1107-08 (7th Cir. 1998) (chambers opinion), and cases cited there, or dismiss with leave to reinstate, which we treat as the equivalent of a stay. Baltimore & Ohio Chicago Terminal R.R. v. Wisconsin Central Limited, 154 F.3d 404, 408 (7th Cir. 1998). The presumption was reinforced here by the district court's statement that it was "terminating case," suggesting that it was indeed relinquishing jurisdiction. No doubt the judge hoped that on remand the arbitrator would render an award that satisfied both parties or, more likely, would be solid enough to discourage a judicial challenge.

On remand, the...