McClatchy Newspapers v. Central Valley Typographical Union No. 46, Intern. Typographical Union

• Decision Date: 22 September 1982
• Docket Number: Nos. 80-4597,81-4117,s. 80-4597
• Parties: 111 L.R.R.M. (BNA) 2254, 111 L.R.R.M. (BNA) 2502, 95 Lab.Cas. P 13,730 McCLATCHY NEWSPAPERS, d/b/a The Sacramento Bee, a California corporation, Plaintiff-Appellant, v. CENTRAL VALLEY TYPOGRAPHICAL UNION NO. 46, INTERNATIONAL TYPOGRAPHICAL UNION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 731

686 F.2d 731

111 L.R.R.M. (BNA) 2254, 111 L.R.R.M. (BNA) 2502,

95 Lab.Cas. P 13,730

McCLATCHY NEWSPAPERS, d/b/a The Sacramento Bee, a California

corporation, Plaintiff-Appellant, v. CENTRAL VALLEY TYPOGRAPHICAL UNION NO. 46, INTERNATIONAL

TYPOGRAPHICAL UNION, Defendant-Appellee.

Nos. 80-4597, 81-4117.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1982.

July 14, 1982.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 22, 1982.

Allen W. Teagle, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for plaintiff-appellant.

Duane B. Beeson, Beeson, Tayer, Kovach & Silbert, San Francisco, Cal., for defendant-appellee.

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

Before WALLACE, KENNEDY and CANBY, Circuit Judges.

WALLACE, Circuit Judge:

This case presents consolidated appeals brought by McClatchy Newspapers (the publisher). The first appeal is from a judgment of the district court confirming an arbitration award in favor of Central Valley Typographical Union No. 46 (the union), a local of the International Typographical Union. While that appeal was pending, the district court entered an amended judgment which reaffirmed the original decision and made additional directives. The second appeal is from the amended judgment. We affirm the original judgment of the district court and vacate the amended judgment.

I

On November 20, 1973, the parties executed an agreement (the Scanner Agreement), a principal feature of which was the guarantee of lifetime jobs to named composing room employees. The guarantee was subject to the following qualifications:

(Named) composing room employees will be retained in the employment of the Publisher( ) ... for the remainder of their working lives unless forced to vacate ... through retirement, resignation, death, permanent disability, or discharge for cause; provided, however, in the event of permanent suspension of (the) Publisher's composing room operation, such employment guarantee will thereupon cease. In case of a strike or lockout, such employment guarantee shall immediately cease and continuance of this Agreement will be contingent upon the terms of a negotiated strike or lockout settlement ....

On April 17, 1978, the Sacramento Mailers Union Local 31 (the mailers), another local of the International Typographical Union, struck the publisher. Some of the composing room employees named in the Scanner Agreement, observing the mailers' picket line, left their work stations prior to quitting time and subsequently refused to cross the picket line. Some also joined the mailers' picketing activities.

The publisher asserted that these activities terminated the job guarantees of those employees who participated in the sympathy strike. The union disagreed. The parties submitted the question to arbitration. The stipulated issue submitted to the arbitrator was

(w)hether the job guarantees provided in paragraph 1 of the 1973 Memorandum Agreement between the Sacramento Bee and Central Valley Typographical Union # 46 ceased for any or all of the employees covered by that Agreement by reason of the strike which began April 17, 1978.

On August 10, 1979, the arbitrator issued his decision. He concluded that the word "strike" in the Scanner Agreement referred only to a primary strike and that the sympathy strike did not terminate the job guarantees. Eight months later the publisher requested that the arbitrator reopen the proceedings to receive new evidence. The arbitrator denied the request. The district court confirmed the arbitration award, and the publisher appealed.

Following the district court's decision, the union renewed its demand that the composing room employees be allowed to return to work. According to the union, the district court's order enforcing the arbitrator's decision compelled immediate reinstatement. The publisher disagreed. On February 6, 1981, the union filed a motion for an order adjudicating the publisher's civil contempt. The publisher opposed this motion contending that neither the arbitration award itself nor the district court's confirmation of the award compelled immediate reinstatement. The district court denied the motion, but, pursuant to Fed.R.Civ.P. 62(c), entered an amended order confirming the original award and requiring the publisher to return the composing room employees to their original or equivalent positions.

This appeal presents the following issues: whether the arbitrator acted within the authority conferred upon him by the parties, whether the arbitrator properly refused to reopen the record, whether the district court had jurisdiction to enter an amended judgment while the appeal of its original judgment was pending, and whether the district court properly ordered reinstatement of the composing room employees.

II

Review of an arbitration award is limited. Plenary review of the merits of an arbitration award would undermine the federal policy of settling labor disputes by arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Nevertheless, we may determine whether the parties "agree(d) to give the arbitrator the power to make the award he made," United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960), and whether the award drew its essence from the agreement submitted for arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S.Ct. at 1361. See Syufy Enterprises v. Northern California State Ass'n of I.A.T.S.E. Locals, 631 F.2d 124 (9th Cir. 1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 839 (1981).

The publisher argues that the arbitrator exceeded his powers when he interpreted the term "strike" to encompass only primary strikes. We disagree. The arbitrator's interpretation of the term was essential to his resolution of the issue submitted to him. By empowering the arbitrator to decide whether the job guarantees ceased by reason of the April 17, 1978, strike, the publisher implicitly agreed to have the arbitrator interpret the scope of the words "strike or lockout" in the Scanner Agreement. The publisher also argues that the award does not draw its essence from the Scanner Agreement. We again disagree. The arbitrator's award "represents a plausible interpretation of the contract." Riverboat Casino, Inc. v. Local Joint Executive Board, 578 F.2d 250, 251 (9th Cir. 1978), quoting Holly Sugar Corp. v. Distillery Union, 412 F.2d 899, 903 (9th Cir. 1969).

III

The publisher also argues that the award should not be confirmed because the arbitrator improperly refused to reopen the proceedings to consider newly available evidence eight months after the award issued. We conclude that the arbitrator acted properly. "Arbitrators are not and never were intended to be amenable to the 'remand' of a case for 'retrial' in the same way as a trial judge." Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 442 F.2d 1234, 1238 (D.C.Cir.1971). Even assuming the availability of new evidence, it would not be appropriate for the arbitrator to consider such evidence and then redetermine the issues originally submitted to him. It is (a) fundamental common law principle that once an arbitrator has made and published a final award his authority is exhausted and he is functus officio and can do nothing more in regard to the subject matter of the arbitration. The policy which lies behind this is an unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion. The continuity of judicial office and the tradition which surrounds judicial conduct is lacking in the isolated activity of an arbitrator, although even here the vast increase in the arbitration of labor disputes has created the office of the specialized professional arbitrator.

La Vale Plaza, Inc. v. R. S. Noonan, Inc., 378 F.2d 569, 572 (3d Cir. 1967). See Mercury Oil Refining Co. v. Oil Workers Int'l Union, 187 F.2d 980, 983 (10th Cir. 1951). ¹

IV

The publisher further argues that the district court was without jurisdiction to enter its amended judgment. We agree. When a judgment is appealed, jurisdiction over the case passes to the appellate court. The filing of a notice of appeal generally divests the district court of jurisdiction over the matters appealed. Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982); Taylor v. Wood, 458 F.2d 15, 16 (9th Cir. 1972); Sumida v. Yumen, 409 F.2d 654, 656-57 (9th Cir. 1969), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972). Certain exceptions to the rule have been recognized. ² Only one of those exceptions, which is codified in Fed.R.Civ.P. 62(c), is arguably applicable in this case. That rule provides in part:

When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

Rule 62(c) is "merely expressive of a power inherent in the court to preserve the status quo where, in its sound discretion, the court deems the circumstances so justify." 7 J. Moore, Moore's Federal Practice P 62.05, at 62-19 to 20 (2d ed. 1979). It does not restore jurisdiction to the...