Louisiana-Pacific Corp. v. International Broth. of Elec. Workers, AFL-CIO, Local Union 2294

Decision Date03 July 1979
Docket NumberNos. 77-2414,LOUISIANA-PACIFIC,No. 49,AFL-CI,LOCAL,77-3841,D,49,s. 77-2414
Citation600 F.2d 219
Parties102 L.R.R.M. (BNA) 2070, 86 Lab.Cas. P 11,415 CORPORATION, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,UNION 2294, Association of Western Pulp and Paper Workers, and Association of Western Pulp and Paper Workers, Local Unionefendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph A. Darrell, of Thelen, Marrin, Johnson & Bridges, San Francisco, Cal Louis B. Livingston, of Miller, Anderson, Nash, Yerke & Wiener, Portland, Or., for plaintiff-appellant.

William F. Ferroggiaro, Jr., Eureka, Cal., Don S. Willner, of Willner, Bennett, Riggs & Skarstad, Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE and SNEED, Circuit Judges, and BLUMENFELD, * District Judge.

BLUMENFELD, District Judge:

The appellant Louisiana-Pacific Corporation (The Company) is subject to two arbitration awards under two separate collective bargaining agreements which have obligated it to pay in a jurisdictional dispute two different sets of employees for the work of one. The Company brought suits in the Northern District of California to set aside these awards and to obtain tripartite arbitration of the jurisdictional dispute over a work assignment. The unions each filed cross-petitions for confirmation of their respective awards. On cross-motions for summary judgment, the District Court dismissed the complaints of the Company and, respectively, entered judgments confirming each of the arbitration awards. We affirm.


The Company operates a pulp and paper mill in Samoa, California. At all times pertinent to this case, it was party to separate agreements, arrived at after collective bargaining, with, respectively, the Association of Western Pulp and Paper Workers and its agent Local Union No. 49 (Pulp Workers), appellees, and the appellee International Brotherhood of Electrical Workers, Local Union 2293 (IBEW). Each of the two unions represent different employees in separate bargaining units at the Company.

In July 1975, the Company assigned work for the disassembly and reassembly of the generator portion of a turbine-generator at the Samoa mill to maintenance electricians represented by IBEW. The Pulp Workers believed that under its collective bargaining agreement, the work should have been assigned to personnel in its bargaining unit and filed a grievance. 1 The parties failed to resolve the dispute through the grievance procedure, and, pursuant to the collective bargaining agreement, the Pulp Workers processed the unresolved grievance to arbitration. It was heard by Arbitrator John Kagel in April 1976, and decided by him in September 1976, by directing payment to the Pulp Workers' members for 535 hours of lost work. 2 Its personnel having completed the work in dispute, IBEW did not participate in this arbitration. Thereafter, on November 30, 1976, the Company filed suit against both unions in the Northern District of California to vacate the Kagel award and to obtain an order requiring the Pulp Workers and IBEW to participate in tripartite arbitration. The Pulp Workers filed a cross-petition for confirmation of the award. On cross-motions for summary judgment, the District Court, in March 1977, confirmed the Kagel award and denied the claim for tripartite arbitration. 3 The Company appeals from that decision in No. 77-2414.

After the Kagel award was issued, IBEW, believing that this would impair its right under its collective bargaining agreement to that kind of work in the future, filed a grievance. 4 The Company denied the grievance at its final stage, and IBEW processed it to arbitration before Arbitrator Gerald Marcus. At this point, and for the first time, the Company attempted to take the position of a neutral party in a dispute involving the interests of two separate sets of employees. It invited the Pulp Workers to participate in this second arbitration proceeding and to be bound by it despite the previous award. 5 The Pulp Workers did not respond. In June 1977, Arbitrator Marcus decided the dispute between IBEW and the Company in the union's favor, deciding that the work, which had already been completed, had been correctly assigned to IBEW personnel under its collective bargaining agreement. 6 The Company thereupon filed another suit against both unions in the Northern District of California. This suit sought to vacate the Marcus award and, again, to obtain an order for the Pulp Workers and IBEW to participate in tripartite arbitration. IBEW filed a cross-petition for confirmation of the award. On cross-motions for summary judgment, Judge Schnacke confirmed the Marcus award and denied the Company's renewed claim for tripartite arbitration. 7 The Company appeals from that decision in No. 77-3841. The two appeals have been consolidated.


The desirability of achieving tripartite arbitration in jurisdictional disputes over work assignments has repeatedly been emphasized. Transportation-Communication Employees Union v. Union Pacific Railroad Co., 385 U.S. 157, 161, 87 S.Ct. 369, 17 L.Ed.2d 264 (1966); Local 416, Sheet Metal Workers v. Helgesteel Corp., 507 F.2d 1053, 1057-58 (7th Cir. 1974); Columbia Broadcasting System, Inc. v. American Recording and Broadcasting Association, 414 F.2d 1326, 1329 (2d Cir. 1969). However, the question of whether that objective can be achieved at the cost of overturning arbitrators' bipartite awards after they have been arrived at under each of the existing collective bargaining agreements does not appear to have been addressed previously by the federal courts.

The policy favoring arbitration of labor-management disputes under a collective bargaining agreement as the preferred method for the achievement of industrial peace was authoritatively and emphatically established in the so-called Steelworkers Trilogy. 8

"(T)he grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties. The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.

"Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement.

"The labor arbitrator performs functions which are not normal to the court; the considerations which help him fashion judgments may indeed be foreign to the competence of courts.

'A proper conception of the arbitrator's function is basic. He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. . . .' "

United Steelworkers v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 581, 80 S.Ct. at 1352 (citation omitted). See also, Section 203(d) of the Labor Management Relations Act, 1947, 61 Stat. 154, 29 U.S.C. § 173(d). 9

The Supreme Court has emphasized that " 'The underlying objective of the national labor laws is to promote collective bargaining agreements and to help give substance to such agreements through the arbitration process.' " Carey v. Westinghouse Electric Corp., 375 U.S. 261, 265, 84 S.Ct. 401, 405, 11 L.Ed.2d 320 (1964), quoting Judge Fuld, below, in dissent, 11 N.Y.2d 452, 458, 230 N.Y.S.2d 703, 706, 184 N.E.2d 298, 300 (1962).

There is no suggestion here of fraud or bias on the part of either Arbitrator Kagel or Arbitrator Marcus, See Holodnak v. Avco Corp., Avco-Lycoming Division, 381 F.Supp. 191 (D.Conn.1974), Mdf'd on other grounds, 514 F.2d 285 (2d Cir.), Cert. denied, 423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975), or that they went beyond the provisions of each of the respective collective bargaining agreements, See, City Electric, Inc. v. Local Union 77, IBEW, 517 F.2d 616, 619 (9th Cir.), Cert. denied, 423 U.S. 894, 96 S.Ct. 194, 46 L.Ed.2d 127 (1975); Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966). Neither is it argued that either arbitrator acted improperly or made the wrong decision based upon the two agreements which, respectively, were before each of them; nor should either of these arbitrators have been governed by provisions in the other's agreement.

"(A)n 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."

United Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S.Ct. at 1361. See also, Holly Sugar Corp. v. Distillery, Rectifying, Wine & Allied Workers, 412 F.2d 899, 902-03 (9th Cir. 1969); Riverboat Casino, Inc. v. Local Joint Executive Board, 578 F.2d 250 (9th Cir. 1978).


Despite the unchallenged fidelity of each of these arbitrators to the agreements which had been drafted by the Company and each of the unions, the Company now attacks the awards because of their apparent inconsistency. This, it is argued, should be a basis for ignoring firm federal policy on the finality of a labor arbitrator's decision. 10

The Company...

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