Retail Store Emp. Union Local 782 v. Sav-On Groceries
| Decision Date | 07 January 1975 |
| Docket Number | SAV-ON,No. 74-1219,74-1219 |
| Citation | 508 F.2d 500 |
| Parties | 88 L.R.R.M. (BNA) 3205, 75 Lab.Cas. P 10,572 RETAIL STORE EMPLOYEES UNION LOCAL 782, Appellant, v.GROCERIES, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert L. Uhlig, Kansas City, Kan., for appellant.
John M. Edgar, Kansas City, Mo. (Earl J. Engle and Claude L. Rice, Kansas City, Kan., on the brief), for appellee.
Before SETH, BARRETT and DOYLE, Circuit Judges.
Retail Store Employees Union Local 782 (Union) appeals from a judgment, following trial to the court, in favor of Sav-On Groceries (Sav-On) refusing to enforce an Arbitration Award issued in favor of one of Union's members.
Mrs. Donna Whiles, member of appellant Union, was an employee of Sav-On with the job classification of 'clerk' which required her to perform both 'checking' and 'stocking' duties. During 1971 and 1972 her working hours were reduced (allegedly in violation of the existing labor contract), while other employees with less seniority, did not have their hours similarly reduced. Mrs. Whiles filed a grievance and the matter was submitted to an arbitrator, Mr. Ralph Co. Barnhart. The particular issue submitted to the arbitrator read:
Did the company exercise fairness in judging the qualifications of Donna Whiles by not allowing her to displace less senior employees who engage in stocking and checking duties.
Following a hearing before the arbitrator, an award was issued November 29, 1972, sustaining the grievant, Mrs. Whiles. This award provided not only that Sav-On had not acted fairly in dealing with its employee, but also held that: (1) Mrs. Whiles was entitled to back pay; and (2) that Sav-On could not 'assign her impossible heavy tasks (i.e., stocking heavy items) in order to reduce her hours or perhaps to eliminate her altogether . . .' Thereafter Sav-On refused to pay the back wages as directed by the arbitrator and on January 2, 1973 discharged Mrs. Whiles.
In light of these actions, Union alleged in its complaint that Sav-On had wrongfully failed to comply with the arbitration award. Sav-On answered that the issue of back wages had not been submitted to the arbitrator and that he was, therefore, without jurisdiction to make such an award. Sav-On further alleged that that portion of the award directing it to not assign heavy tasks to Mrs. Whiles (while such tasks could be assigned to male employees in the same job classification), constituted a per se violation of Title VII of the Civil Rights Act and could not be enforced. Sav-On, in addition, counterclaimed for an order requiring the issues of back pay and the discharge of January 2, 1973 to be submitted to arbitration.
The trial court held that the arbitration award was null and void insofar as it granted back pay to Mrs. Whiles and insofar as it required Sav-On to violate the law. It also ordered the parties to submit to arbitration on the issues of back pay and the discharge of January 2. 1
On this appeal Union contends: (1) the trial court erred in refusing to enforce the arbitration award; (2) the issue of back pay was within the jurisdiction of the arbitrator to decide; (3) the issue of back pay should have been remanded to the original arbitrator for clarification; and (4) the trial court erred in concluding that the arbitration award requires Sav-On to violate Title VII of the Civil Rights Act.
Union's contention that the trial court erred in not enforcing the arbitration award 'even if it disagreed with the arbitrator's findings and conclusions' is misplaced. Union has misconstrued, we believe, the basis of the trial court's holding. The trial judge did not question the merits of this award, i.e., whether Sav-On had in fact acted fairly in dealing with Mrs. Whiles, but rather only whether the arbitrator had authority (in light of the issue presented for arbitration) to make an award of back pay. The authorities cited by Union in this regard are inapposite.
Union's primary contention is that the arbitrator had authority to grant back pay to the grievant, Mrs. Whiles, even though the precise issue submitted (as set out above) did not ask the arbitrator to formulate such a specific remedy.
While we take note that there is some authority to the contrary, see, Electric Specialty Co. v. Local 1069, International Brotherhood of Electrical Workers, AFL-CIO, 222 F.Supp. 314 (D.C.Conn.1963), we hold the better rule is that adopted in Kansas City Luggage & Novelty Workers Union, Local No. 66, AFL-CIO v. Neevel Luggage Manufacturing Company, 325 F.2d 992 (8th Cir. 1964):
In granting the Company summary judgment, the trial court merely declined to enforce so much of the arbitrator's award as related to back pay, and did so without prejudice to further arbitration proceedings to resolve that issue. While it may be doubted that the question was or is of sufficient importance to justify reviving or prolonging any part of the dispute between the parties, it is true, as the trial court said, that the back pay issue was not specifically or necessarily included in the subject matter submitted to arbitration.
It is the law that 'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1937, 1353, 4 L.Ed.2d 1409. See, also United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 570-571, 80 S.Ct. 1343, 4 L.Ed.2d 1403; Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462. 325 F.2d 992 at 993-994.
Sav-On's challenge to the arbitrator's award is here premised upon the fact that the issue submitted to the arbitrator was a narrow one which did not encompass the back-pay 'remedy' awarded. The challenge is not based upon an allegation that the bargaining agreement or the contract itself did not provide for a specific remedy for the grievance complained of (regardless of whether the arbitrator was asked to formulate a remedy by the issues submitted). Union's cases cited for authority of what an arbitrator's remedial subject-matter jurisdiction might be in the latter situations are not, therefore, persuasive.
Similarly, this is not a case where the issue submitted to the arbitrator is in any sense 'vague'. Kroger Company v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 661, 380 F.2d 728 (6th Cir. 1967), is, accordingly, inapposite.
Finally, Union cites to United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), for the proposition that an arbitrator 363 U.S. at 597, 80 S.Ct. at 1361. Any implication drawn from this language that an arbitrator has the 'inherent' power to formulate a remedy despite the scope of the issue presented, is undercut, we believe, by the Court's qualifying language in that same case:
Moreover, we see no reason to assume that this arbitrator has abused the trust the parties confided in him and has not stayed within the areas marked out for his consideration. It is not apparent that he went beyond the submission. 363 U.S. at 598, 80 S.Ct. at 1361.
In the case at bar we think that the arbitrator clearly went beyond that area 'marked out for his consideration.'
We hold that the issue of back pay was not submitted to the arbitrator here and that the trial court did not err in finding the arbitration award 'null and void' insofar as it applied to that issue.
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