Pack Concrete, Inc. v. Cunningham

• Decision Date: 18 January 1989
• Docket Number: 87-4176,Nos. 87-4175,No. 2,2,s. 87-4175
• Citation: 866 F.2d 283
• Parties: 130 L.R.R.M. (BNA) 2490, 57 USLW 2483, 110 Lab.Cas. P 10,917 PACK CONCRETE, INC., a corporation, Plaintiff-Counter-Defendant-Appellant- Cross-Appellee, v. Walter T. CUNNINGHAM, and Christopher W. Olmsted, Defendants-Appellees-Cross- Appellants, and Teamsters Local, a labor organization, Defendant-Counter-Plaintiff- Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 283

866 F.2d 283

130 L.R.R.M. (BNA) 2490, 57 USLW 2483,

110 Lab.Cas. P 10,917

PACK CONCRETE, INC., a corporation, Plaintiff-Counter-Defendant-Appellant- Cross-Appellee, v. Walter T. CUNNINGHAM, and Christopher W. Olmsted, Defendants-Appellees-Cross- Appellants, and Teamsters Local No. 2, a labor organization,

Defendant-Counter-Plaintiff- Appellee-Cross-Appellant.

Nos. 87-4175, 87-4176.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1988.

Decided Jan. 18, 1989.

Robert J. Phillips and Robert S. Marcott, Snavely & Phillips, P.C., Missoula, Mont., for Pack Concrete, Inc.

D. Patrick McKittrick, McKittrick Law Firm, P.C., Great Falls, Mont., for Cunningham, Olmsted and Teamsters Local No. 2.

Appeal from the United States District Court for the District of Montana.

Before NELSON and BEEZER, Circuit Judges, and REA, ^* District Judge.

REA, District Judge:

This appeal involves the validity of a labor arbitration award finding that Pack Concrete, Inc. (Pack) improperly discharged two employees. Pack petitioned the district court to vacate the award, contending that the issue submitted for arbitration was limited solely to questions of layoff and recall, and that the arbitrator therefore exceeded his authority by finding the employees had been discharged. The district court upheld the award. We affirm.

I.

This case arises from an employment dispute between Pack, a company which delivers pre-mixed concrete to construction sites, and two of its mixer truck drivers, Walter Cunningham and Christopher Olmsted. Cunningham and Olmsted are both members of Teamsters Local No. 2 (the Union), the collective bargaining agent for Pack's employees.

Pack and the Union are parties to a collective bargaining agreement (CBA) which requires arbitration of "any dispute involving the interpretation, application, or alleged violation of a provision of this Agreement." Article XII of the CBA provides that employees cannot be discharged without just cause and sets forth procedures which Pack must follow to discharge a worker. Article IX further requires Pack to respect seniority rights in laying off and rehiring workers, "subject to competency and ability being equal in the judgment of the employer."

In February, 1985, Pack sent letters to Cunningham and Olmsted, stating: "Efficiency and economy of seasonal operations requires [sic] the reduction of our working forces and, regrettably, we hereby notify you of your discharge effective February 1, 1985." The letters then instruct the employees to file new job applications in order to be considered for future employment.

The Union construed the letters to be discharge notices and demanded that the employees be reinstated. It subsequently infomed Pack by letter of its intention to submit the matter to arbitration. In March, 1985, Pack responded by claiming the two employees had been laid off, rather than discharged. Cunningham and Olmsted then presented oral grievances, alleging violations of their seniority rights by virtue of Pack's failure to rehire them. Pack denied these grievances.

The Union protested the failure to rehire Olmsted and Cunningham and again informed Pack that it intended to submit the grievance to arbitration. The Union then sent a form to the Federal Mediation and Conciliation Service requesting a panel of arbitrators. The form calls for the party making the request to supply general information about the dispute, and in the space provided for a description of the type of issue to be arbitrated, the Union stated: "Seniority & Recall."

In August, 1985, the arbitrator issued his decision, concluding that Olmsted and Cunningham had been discharged, not laid off, and that their discharge violated the procedures required by the CBA. The arbitrator ordered Pack to reinstate the two employees with full seniority and awarded them back pay and fringe benefits. The arbitrator also directed Pack to state more clearly its intention in future letters regarding layoffs and discharges.

Pack filed a petition to vacate the award pursuant to 9 U.S.C. Sec. 10(d), on the ground that the arbitrator exceeded his authority by deciding an issue which had not been submitted to him. Specifically, Pack argued that because the issue submitted for arbitration was limited to "seniority and recall," the arbitrator lacked authority to find a discharge and to frame remedies accordingly. Pack also claimed the Union had not followed proper filing procedures and attacked the arbitrator's attempt to dictate the content of future letters. After consideration of cross-motions for summary judgment, the district court granted judgment to the Union, affirming the award to Cunningham and Olmsted. ¹

Pack timely appealed the district court's grant of summary judgment. The Union filed a notice of limited cross-appeal, agreeing with the district court's conclusion, but challenging two of the court's factual findings. We have jurisdiction over an appeal of a district court's grant of summary judgment confirming a labor arbitration award. 29 U.S.C.A. Sec. 185(a) (West 1978); 28 U.S.C.A. Sec. 1291 (West Supp.1988).

II.

This court reviews de novo a district court's grant of summary judgment confirming an arbitration award. Local Joint Exec. Board of Las Vegas v. Riverboat Casino, Inc., 817 F.2d 524, 526 (9th Cir.1987).

The scope of review of an arbitrator's decision is extremely narrow. Sunshine Mining Co. v. United Steelworkers of America, 823 F.2d 1289, 1293 (9th Cir.1987). "As long as the arbitrator's award 'draws its essence from the collective bargaining agreement' and is not merely 'his own brand of industrial justice,' the award is legitimate." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, ----, 108 S.Ct. 364, 370, 98 L.Ed.2d 286, 298 (1987) (quoting 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)). "[I]f on its face, the award represents a plausible interpretation of the contract, judicial inquiry ceases and the award must be enforced." George Day Constr. Co. v. United Bhd. of Carpenters, 722 F.2d 1471, 1477 (9th Cir.1984).

An arbitrator's authority is limited, however, by the principle that where an arbitrator "exceeds the boundary of the submission to him, the award will be held invalid." La Mirada Trucking v. Teamsters Local Union 166, 538 F.2d 286, 288 (9th Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977). This circuit has not delineated the standard by which a federal court should review an arbitrator's determination of his own authority as defined by the submitted issue.

We now hold that an arbitrator's interpretation of the scope of the issue submitted to him is entitled to the same deference accorded his interpretation of the collective bargaining agreement. This approach is consistent with well-established principles of federal labor law and is supported by the decisions of those circuits that have considered the issue, each of which has adopted a deferential standard of review. ²

In our view, deference to an arbitrator's interpretation of a submission follows from the Supreme Court's directive that "when the subject matter of a dispute is arbitrable, 'procedural' questions which grow out of the dispute and bear on its final disposition are to be left to the arbitrator." Misco, 484 U.S. at ----, 108 S.Ct. at 372, 98 L.Ed.2d at 298 (citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898, 909 (1964)). Application of this rule is especially apt in the instant case, where Pack's argument is not that the discharge issue was not arbitrable or even factually unrelated to the dispute, but rather that the Union mislabeled the issue when it requested the panel.

The technical nature of Pack's argument highlights the considerations of federal labor policy favoring deference to the arbitrator's interpretation of the issue submitted. Failure to adopt this standard would require the judiciary "to determine, case by case, the exact scope of submission in the endless number of grievances and disputes that inevitably occur between employers and employees." Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299, 302 (3d Cir.1982). ³ As the Mobil court warned, permitting such plenary review would "undermine[ ] the congressional policy in favor of expeditious and relatively inexpensive means of settling grievances, and thus of promoting labor peace." Id. Furthermore, interpreting the issue submitted often requires construction of the agreement itself, a job clearly for the arbitrator. Id.; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898, 909 (1964). ⁴

We are persuaded that the same policies which have led this court to...