New Meiji Market v. United Food & Commercial Workers Local Union 905

• Decision Date: 22 May 1986
• Docket Number: No. 85-5927,85-5927
• Citation: 789 F.2d 1334
• Parties: 122 L.R.R.M. (BNA) 2961, 105 Lab.Cas. P 12,066 NEW MEIJI MARKET, Plaintiff-Appellee, v. UNITED FOOD & COMMERCIAL WORKERS LOCAL UNION # 905, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1334

789 F.2d 1334

122 L.R.R.M. (BNA) 2961, 105 Lab.Cas. P 12,066

NEW MEIJI MARKET, Plaintiff-Appellee, v. UNITED FOOD & COMMERCIAL WORKERS LOCAL UNION # 905,

Defendant-Appellant.

No. 85-5927.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 1986.

Decided April 25, 1986.

Designated for Publication May 22, 1986.

Gregory S. Drake, Hill & Farrer, Los Angeles, Cal., for plaintiff-appellee.

Chris Cameron, Jay D. Roth, Los Angeles, Cal., for defendant-appellant.

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

Before HUG and NORRIS, Circuit Judges, and SOLOMON, ^* District Judge.

HUG, Circuit Judge.

Sharlene Ono ("Ono"), together with United Food and Commercial Workers Local Union 905 ("Union"), appeals a district court order that vacated an arbitration award in their favor. The only issue on appeal is whether the district court erred when it vacated the arbitration award. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and reverse.

Ono was employed by New Meiji Market ("New Meiji"). In November 1983, New Meiji fired Ono for cash register discrepancies. In response, Ono and the Union filed a grievance petition and submitted the matter to arbitration.

The arbitrator found that New Meiji had violated the collective bargaining agreement when it terminated Ono without good cause. She was ordered reinstated with full benefits and seniority, and was awarded back wages.

On February 22, 1985, New Meiji filed in the district court a Petition to Vacate the Arbitration Award. On March 28, 1985, the Union filed a Counterclaim to Confirm the Award Made Pursuant to Arbitration. Each side then moved for summary judgment. On May 15, 1985, the district court granted summary judgment to New Meiji and vacated the arbitration award.

We review de novo a district court's grant of summary judgment confirming or vacating an arbitration award. See Frederick Meiswinkel, Inc. v. Laborer's Union Local 261, 744 F.2d 1374, 1376 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1394, 84 L.Ed.2d 783 (1985).

A district court's review of an arbitrator's award is more limited, however. Unless the arbitral decision fails to "draw[s] its essence from the collective bargaining agreement," 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), the district court is bound to enforce the award and is not entitled to review the merits of the contract dispute. See Id. at 598-99, 80 S.Ct. at 1361-62. This circuit has held that, in determining whether an arbitrator's award draws its essence from the collective bargaining agreement, the district court must accord considerable deference to the arbitrator's judgment. See Sheet Metal Workers International Association Local Union No. 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 744 (9th Cir.1985); Holly Sugar Corp. v. Distillery, Rectifying, Wine & Allied Workers International Union, 412 F.2d 899, 903 (9th Cir.1969).

The parties submitted the following issues to the arbitrator:

1. Did the Employer, New Meiji Market, violate the Retail Food, Bakery, Candy and General Merchandise Agreement, July 27, 1981--July 29, 1984, between it and UFCW Local 905, AFL/CIO, when it terminated the employment of Sharlene Ono, on or about November 15, 1983?

2. If so, what remedy or relief should be awarded by the Arbitrator?

In rendering his decision, the arbitrator considered a key provision in the Collective Bargaining Agreement. Article III(A) of the Agreement provides, in relevant part:

A. DISCHARGE FOR CAUSE

1. Employees may be discharged for good cause.

2. Employees who are discharged for failure to perform work as required, or excessive absenteeism, shall first have had a prior warning, in writing, of related or similar offense, with a copy sent to the Union. The employee so notified shall be required to initial such notice, but such initialling shall in no way constitute agreement with the contents of such notice. Except for failure to call prices, a warning notice shall not be required in the case of a discharge for cash register irregularities, but such alleged irregularities must constitute good cause for the purpose of sustaining said discharge ....

(Emphasis added.)

After considering the facts in light of this contractual provision, the arbitrator found that New Meiji had violated the collective bargaining agreement by terminating Ono without good cause. Specifically, the arbitrator found that New Meiji had discriminated against Ono by imposing upon her more severe discipline than it had imposed on other employees whom New Meiji had charged with the same conduct. The arbitrator made the following award:

1. The Employer, New Meiji Market violated the Collective Bargaining Agreement between it and ... Local 905, when it terminated the Grievant, Sharlene Ono....

2. It is appropriate that Grievant be reinstated with full benefits and seniority, and receive backpay in such an amount as to make her financially whole so as to account for the work income she lost as a result of her termination.

3. This remedy is...