Yellow Cab Co. v. Democratic Union Organizing Com., Local 777, 16688.

• Decision Date: 15 July 1968
• Docket Number: No. 16688.,16688.
• Citation: 398 F.2d 735
• Parties: YELLOW CAB COMPANY, Petitioner-Appellant, v. DEMOCRATIC UNION ORGANIZING COMMITTEE, LOCAL 777, S. I. U. N. A., AFL-CIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

398 F.2d 735 (1968)

YELLOW CAB COMPANY, Petitioner-Appellant, v. DEMOCRATIC UNION ORGANIZING COMMITTEE, LOCAL 777, S. I. U. N. A., AFL-CIO, Defendant-Appellee.

No. 16688.

United States Court of Appeals Seventh Circuit.

July 15, 1968.

Robert E. Haythorne, of Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., for petitioner-appellant.

Irving M. Friedman, Harold A. Katz, of Katz & Friedman, Chicago, Ill., for defendant-appellee.

Before HASTINGS, FAIRCHILD and CUMMINGS, Circuit Judges.

HASTINGS, Circuit Judge.

Yellow Cab Company appeals from a judgment order of the district court entered January 12, 1968 enforcing an arbitration award and denying appellant's motion for summary judgment vacating the award. Appellant, a Maine corporation, operates a fleet of taxicabs in Chicago, Illinois. Appellee union¹ (the union) is the certified collective bargaining agent of appellant's drivers.

On May 10, 1966, appellant discharged Harold Ray, one of its cab drivers, on the ground that he was unsuitable for employment as a driver. The union intervened on Ray's behalf at a grievance meeting on May 13. At that meeting appellant refused to reconsider its discharge of Ray. There was no further communication on the matter between appellant and the union until ten weeks later when the union, at a regular grievance meeting, attempted to discuss the reinstatement of Ray. Appellant refused to discuss the matter. Two weeks later, on August 5, 1966, the union requested arbitration.

At the outset of arbitration proceedings appellant challenged the arbitrability of the dispute, contending the union had not complied with contractual requirements that grievances be submitted in writing and that requests for arbitration be submitted within twenty days after the Company's adverse decision on a grievance.²

The arbitrator rejected the first of these contentions on the ground that appellant had not previously enforced the writing requirement, although numerous grievances had been processed. He rejected the second contention on the ground that the twenty-day limitation on requests for arbitration should be measured from the date of the last discussion of Ray's discharge between appellant and the union. The arbitrator construed the arbitration provision of the contract as having the purpose of encouraging voluntary settlement of grievances prior to arbitration. He found that many discharge grievances concerning appellant's drivers had been settled in the course of time by reinstatement and concluded that the purpose of the grievance procedure would be frustrated if the contract were narrowly construed to require resort to arbitration within twenty days of the Company's first denial of a grievance. As he saw it "the issue * * * is whether or not there was a reasonable basis for the union's belief that the grievance was still open for discussion and possible settlement." He found that there was.

On the merits the arbitrator concluded that Ray's discharge was unjust. He awarded Ray back pay in the amount of $3,033.66. However, he denied reinstatement, finding that a letter which Ray wrote to appellant's insurance carrier following his discharge revealed a motivation that disqualified him as an employee.

Appellant petitioned the district court on May 26, 1967 to vacate the arbitrator's award on grounds that he exceeded his power and displayed evident bias and partiality. The union cross-petitioned for enforcement of the award, and both parties moved for summary judgment. The court, in its memorandum order granting summary judgment for the union, refused to review the arbitrator's determination of the procedural questions and found that the arbitrator neither exceeded his authority nor displayed bias or partiality.

The first question presented by this appeal is whether the arbitrator's decision on questions of procedural arbitrability are subject to judicial review. The Supreme Court has held that disagreements concerning procedural arbitrability should not be considered as separate disputes, but as aspects of the dispute which called the grievance procedure into play and should therefore be left to the arbitrator. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). It cannot be supposed that the courts, recognizing the arbitrator's exclusive authority to determine procedural questions, may upset the arbitrator's determination in a review proceeding, unless it is arbitrary, capricious or not adequately grounded on the applicable collective bargaining agreement. See Dallas Typographical Union No. 173 v. A. H. Belo Corp., 5 Cir., 372 F.2d 577 (1967).

The arbitrator's resolution of procedural questions is a part of his decision on the merits of the dispute, as the Supreme Court suggested in Wiley. As such, it is subject to the limited standard of review annunciated in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960):

"An 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

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