*1 174 equitable doctrine of un tion for preliminary injunction. Costs applies party against
clean taxed seeking hands when a the appellant, UPMC. relief has committed unconscionable act
immediately equity related to the par
ty in respect litigation. Key seeks to the Co.,
stone Driller Co. v. General Excavator 240, 245, 146,
290 U.S. 78 L.Ed.
293 applicable doctrine seeking
actions relief under the Lanham
Act. Ames Pub. v. Co. Walker-Davis Inc., Publ’n, 1, (E.D.Pa. F.Supp. 372 13 POWER PENNSYLVANIA 1974). Courts, however, do not close their COMPANY, Appellant, plaintiffs doors when misconduct has “no anything suit, relation to involved only for such violations of conscience LOCAL UNION NO. 272 OF THE IN- inas some equitable measure affect the TERNATIONAL BROTHERHOOD
relations
parties
WORKERS,
OF ELECTRICAL
AFL-
something brought before the court for
CIO.
adjudication.”
Driller,
Keystone
245,
517, Cir.1999). 525 17, Argued 2001. Oct. Although sua sponte apply the doctrine,6 we High- choose to do it. Filed 2001. Dec. inappropriate mark’s use of a term in its 1999 advertisement does not excuse cur-
rent deceptive misleading advertise- public.
ments to the
IV. CONCLUSION
In summary, we plain- conclude that the
tiff offered sufficient prove evidence to
that the challenged substantially activities
affected Highmark interstate commerce.
also established that the McCarran Act did
not preclude relief under the Lanham Act deceptive misleading represen-
tations February UPMC’s 2001 Fi- Ad.
nally, the District Court did not abuse its
discretion in Highmark’s granting applica- Thus, to, (3d
6. if we apply Cir.1995); wish we can Mellon, the doc- 1342 Gaudiosi v. City Philadelphia, trine. Harris v. Cir.1959). 47 F.3d *2 A. Patricia Prozzi (Argued),
James A. Lewis, Schnitzler Diulus-Myers, Jackson PA, for Pittsburgh, Counsel Krupman, & Appellant. Cohen, Gatz, (Argued), Bloom M.
Joshua P.A., Colarusso, Pitts- & Koerner Segal, PA, Appellee. for burgh, Counsel ROSENN, BARRY, ALITO, Before Judges. Circuit COURT OF THE OPINION ROSENN, Judge. Circuit en- policy has years, federal In recent of unsettled couraged the point griev- the terminal disputes as of collective procedures ance judi- policy, Under such agreements. the merits is not review cial function to a is limited award an arbitration of whether determination from the collective “draws its essence Steelworkers agreement.” Corp., and Car Enterprise Wheel Am. 1358, 4 593, 597, L.Ed.2d presented issue The narrow appeal requires to us this us to professional employees make “supervisors such a determination. as defined the National Labor Relations Act as amended.” The Agreement became Local Union #272 of the International 16, 1996, effective on February peri- Workers, Brotherhood of Electrical AFL- years. od of three *3 (the Union) CIO grievance initiated a un- der its bargaining agreement Article section 3 of the (the Agreement) Pennsylvania with Power provides Company that “[t]he and the Un- (the Company Company) produc- covering agree ion they discriminate, that will not tion employees and maintenance at coerce, nor any employee intimidate be- (the Plant) Bruce Plant Mansfield with membership cause of or non-membership to early certain retirement bene- in the Union.” Company fits. The offered these benefits Company The and the Union sepa- also in a separate cooperative agreement condi- rately agreed they that would “actively upon tional production the and mainte- support participate joint in a effort to employees’ cooperation nance with man- improve competitive the position of the agement’s improve to efficiency. efforts power represented plant by the Union.” grievance proceeded The to arbitration encourage To productive and financial effi- and the arbitrator found that the Union ciency in the face of impending deregula- and its employees member had failed to in tion the generation electric industry, cooperate Company’s with the efficiency and consequent “period of transforma- However, efforts. the arbitrator conclud- tion,” Cooperative Agreement provided ed that the failure of Company to that Company would utilize a voluntary provide early retirement benefits to the program retirement benefits if it needed to Union provide but to members them to its reduce its at workforce the Plant. In re- supervisory personnel constituted a viola- turn, promised the Union to cooperate tion of its collective bargaining ágreement with the Company in attaining production with the Union. The award required the efficiency. The Cooperative Agreement Company provide to voluntary retirement expressly provided that both prerequi- (VRP) program benefits to the Union determining necessity to reduce sites— member employees at the Plant. determining workforce and whether timely The Company complaint filed a in cooperated Union had attaining produc- in the United States District efficiency tion within the sole dis- —were Western Pennsylvania District seeking cretion Company. The Company to vacate the award. The District Court incorporated similar cooperative agree- declined to vacate the award. We reverse. ments collective bargaining agree-
ment with other unions at its
plants.
other
I.
In
Company
notified
Union
The Company
public utility
is a
engaged
that there would be no workforce reduc-
generation
of electric power at its
addition,
tions at the Plant.
even if the
Plant in Shippingport, Pennsylvania. The
reduced,
workforce were to be
it notified
represents
and main-
the Union that the Plant bargaining unit
tenance
Plant,1
employees
excluding
employees would not be provided volun-
office clerical employees, guards,
tary
other
retirement benefits
Com-
1. The Company operates
gener-
other
electric
covered
the collective
ating plants
Pennsylvania
They
and Ohio.
dispute.
involved in this
First,
alleged
providing
had
the Union
that the Union
had determined
pany
employees
unit
In the
such benefits
conditions.
qualifying
met the
providing them
plants without
offer such at other
meantime,
Company did
unit
Plant
bargain-
Mansfield
Bruce
retirement benefits
voluntary
the anti-discrimination
plants
employees
be-
its other
employees at
unit
ing
disagreed.
arbitrator
provision.
determined
Company had
cause
reasoned
those
representing
the unions
plants were not simi-
met
at other
cooperated
had
Plant
to the Bruce Mansfield
Company larly
situated
conditions.
the for-
employees because
bargaining unit
voluntary retirement benefits
offered
also
with the
cooperated
Bruce mer
had
personnel
both the
supervisory
*4
lat-
efficiency and the
production
plants.
attaining
its sister
Plant and
Mansfield
ter had not.
treatment
disparate
of the
a result
As
employ-
unit
bargaining
the Plant
that
the
Second,
claimed
the Union
supervisors
ees and
violated the anti-discrimination
Company
out of
allegedly “paid
the VRP benefits
retirement
offered
provision because
filed
the Union
pension plan,”
their own
the
personnel at
supervisory
benefits to
bargaining
under the collective
grievance
bargaining
the
denied them to
Plant but
20, 1998. The Union
April
on
agreement
fa-
found
argument
This
employees.
unit
that
its
claim
it “did not
that
submits
reasoned
He
vor with the arbitrator.
the
bene-
VRP
were entitled
supervisors
members
payments for
pension
nor
cooperative agreement,
under the
fits
em-
and
production
maintenance
and
were
claim that
did it ever
fund
from the same
drawn
ployees were
cooperative
party to
same
to the
subject
were
and
The
unit.”
bargaining
conditions,
the same
treat-
disparate
within
to arbitra-
grievance
processed
anti-
Union
of the
to a violation
ment amounted
tion.
the collective
provision of
discrimination
Therefore,
ar-
agreement.
pen-
Company
funding the
monies
voluntary retire-
that the
directed
bitrator
solely
provided
program
sion benefits
qualified
afforded to
ment benefits
ain com-
and maintained
employer
by the
Plant.
at the
unit
plan covers
pension
fund.2 The same
mon
em-
employees, both
all
poli-
legal and
award
Challenging on
personnel.
supervisory
ployees
timely filed suit
Company
cy grounds,
pursu-
District Court
States
Un-
that since the
arbitrator found
801(a)
Manage-
Labor
of the
ant
section
cooperated with
had not
ion
185(a) to
§
efficiency
the ment Relations
attaining
The com-
arbitration award.
vacate
not violated.
Agreement was
Cooperative
(1)
following grounds:
alleged the
plaint
Next, the Union claimed
its
not derive
decision did
the arbitrator’s
provision
the anti-discrimination
violated
(2) the
Agreement;
from
essence
agreement.
of the collective
plan.
pension
Company funds
retirement
pot
argues that "the
brief
2. The Union
pension
paid
person-
into
supervisory
of monies
money
pay the
used to
amount
by
supervisory personnel
of the
by
on
funded
behalf
nel was
fund
(Br.
however,
employees.”
subject
bargaining unit
was the
employees,
and the
member
erroneous;
argument coun-
2)
at oral
This is
bargaining.
of collective
only
acknowledged
the Union
sel for
directly
conflicts with Article VIII
that principle.
reaffirmed
The rationale
2.d of the
which bars the
for the court’s limited role is to ensure that
changing
adding
policy
encouraging
federal
arbitra-
(3)
provisions
Agreement;
of the
the arbi-
tion of
disputes is not
subverted
public
violates
policy;
tration award
excessive court intervention on the merits
(4) the arbitrator’s
sup-
decision
of an
Am.,
award. United Steelworkers of
ported by
parties
the record. Both
cross-
II.
does not “draw[]
its essence from the
The District Court exercised sub
agreement” and the
*5
ject
jurisdiction pursuant
matter
to section
arbitrator
dispensing
is
his or her own'
301(a) of
Management
the Labor
Relations
“brand
justice.”
of industrial
United
185(a).
§
This Court has
Am.,
597,
Steelworkers
363 at
80 S.Ct.
of
jurisdiction
appellate
pursuant
to 28 1358.
U.S.C.
1291. Our
is plenary,
review
Thus, an arbitration award ordi
apply
the same standard as the District
narily
not
will
be vacated unless its es
Court in reviewing the arbitration award.
sence is
drawn
from the collective bar
Shipping
v.
Exxon
Co.
Exxon Seamen’s
Co.,
agreement. W.R. Grace &
Union,
(3d
1287,
Cir.1996).
73 F.3d
1291
764,
179 employees for bargaining-unit a Mansfield that “where there has this Court held conditions con- total- to meet the same agreement, failure disregard of manifest discrimination, in vio- of contract by principles improper stituted unsupported ly shop” a I, the law of 3 of the of Article Section construction lation the award. can vacate court reviewing Agreement. 1295; see Co., F.3d at Shipping
Exxon judi- a here does not seek Co., at 405 F.2d Mfg. Ludwig Honold also of the arbitrator’s of the merits cial review stating review but (noting limited complain Company does not award. still interpretation must that arbitrator’s interpreta- his arbitrator erred in In other agreement). derived from be contrary, it Agreement. On tion words, set aside when an award outside claims that the arbitrator acted his disregard of manifested arbitrator au- contractually delegated scope of his authorization, “dispense[d] and instead pro- specifically thority. Agreement justice.” Newark brand industrial own may not alter that the arbitrator vides Co., at 165 Ledger Morning Company contends amend it. The Am., 363 Steelworkers (quoting United Compa- ruled that when 1358). U.S. anti-discrimination ny before, the arbitrator As noted al- the arbitrator sion of the notwithstanding the Union’s ruled acted the Agreement, amended tered and condi comply failure authority, and scope of his outside Cooperative tions of es- his decision from the failed draw benefits, to the ex voluntary retirement Agreement. sence supervi Plant Company afforded tent voluntary bene *6 retirement sory personnel award, agree with making this to the same benefits it fits must afford that the arbitrator exceeded He employees. unit bargaining Plant Moreover, Agreement. under the powers on the basis this reached result viola- in direct altered the he agreement’s prohibi collective power that had no provision he tion of its of discrimination. tion that into the contract He to do so. wrote em- production and maintenance the Plant reasoned: The arbitrator benefits as have the same ployees shall made it clear Lubich Company witness employees. The supervisory [pen- in the groups were same that both employ- supervisory specifically excludes all Edison plan, designed for Ohio sion] Furthermore, the Na- its terms. ees from bargaining-unit Pennsylvania Power (NLRA) ex- Relations Act tional Labor personnel. Management employees and from the cludes these VRP Thus, making Company’s in a collective or from inclusion unit person- Supervisory to benefits available are not Supervisors agreement. they though even nel at Bruce Mansfield pur- collective conditions, employees for failed to meet NLRA.3 poses Bruce under denying those benefits to while super- a employed ... as elude individual Rela- an the National Labor Congress 3. amended su- specifically to exclude visor.” tions Act in 1947 "employee.” definition of pervisors from the by the accompanied "was This exclusion exclusion, 152(3), provides § in U.S.C. section in a new congressional declaration 'employee' shall term pertinent part: "The 14(a)” part that: pertinent providing in not in- any ... but employee shall include in labor contract Nothing part prac- between that it shall be an unfair labor that parties provides employer tice for an to discriminate “in employees shall maintenance have the regard to or employment hire tenure of supervisory employees, same benefits as any employment term or condition of to particularly voluntary retirement benefits. encourage discourage membership Nothing anti-discriminatory organization.” labor employer sion of the contract between the 158(a)(3). 8(b) § provides perti- Section employees remotely provides and its union part nent practice that is an unfair labor a for a basis determination the Com- “(1) organization agents: or its pany against discriminated its Union em- (A) employees to restrain or coerce in the ployees it did not offer the same rights guaranteed exercise of the in Sec- supervisors. VRP benefits it afforded its (2) tion 157 of this title ... to cause or Congress dynamics understood that the attempt to an employer cause to discrimi- industry required loy- and commerce against nate an employee in violation of alty by supervisory personnel owed (a)(3) subsection of this section or to dis- employer excludes them from collec- against employee criminate an with re- employ- tive for rank and file spect to whom membership organi- such ordinarily paid ees. The one is on an zation has been denied or terminated.” 29 hourly comply basis to wage with federal 158(b). U.S.C. Because and hours statutory provi- laws “employees” pur- under the NLRA for pay sions for overtime after 40 hours of poses of bargaining, employ- an per Supervisors work week. are ordinari- affording er’s retirement super- benefits to ly paid a salary on basis and are not visors but not providing them to union subject provisions to the same overtime employees possibly member cannot consti- usually the law. Benefits differ between tute discrimination es- groups health, the two life pecially under the anti-discrimination sec- insurance, bonus and other benefits. Agreement. tion of the Carried Nothing Agreement, including the conclusion, logical the arbitrator’s reason- provision, requires anti-discrimination ing require would provide supervisors and bargaining *7 its rank and employees file with the same vacations, shall wages, receive the same or provides benefits it its unless super- other benefits on the same basis as employer separate, the establishes inde- visors. discriminatory provision The of pendent funding for supervi- benefits for Agreement the solely refers to acts of sors and non-supervisors, another for even Company discrimination between the and though funding provided the is entirely by the Union and its members. This employer. This is neither the law nor sion of the contract is common in many industry practice. highly It is impractical, apparently labor It contracts. finds its costly 8(a) (b) and even unmanageable be genesis in sections and of the large companies with multiple National Labor that have Relations (b) 158(a), §§ relating more, unfair in prac- plant units one or and 8(a)(3) provides tices. in pertinent many Section separate collective bargaining agree- Gorman, employer subject [N]o to this Act shall be Robert A. Law, Basic Text on Labor compelled to deem individuals defined Bargaining Unionization and Collective employees herein as as for the law, local, purpose either national or relating bargaining. to collective funds, collective ments, maintain, invest- separate records, permissible powers of the ments, reports. far exceeds and applied generally it arbitrator. Were concluded District Court The marketplace, it would wreak conster- bring the su- did not decision arbitrator’s in- throughout nation and havoc American and conditions under the terms pervisors nothing amounts to dustry. The award including Coopera- Agreement, of the personal more than the arbitrator’s brand Rather, the District Agreement. tive justice agree. which we do not simply that the reasoned arbitrator Court given explanation that “no was concluded personnel, unlike why supervisory
as to
III.
not sub-
employees,
were
Accordingly, de
arbitrator’s
for VRP bene-
ject
qualifying conditions
express provisions
with the
cision conflicts
explanation
a lack of
amount-
fits and such
Company
Agreement
of the
between the
in contravention of
to discrimination
ed
and the Union. The
has written
arbitrator
However,
employer
[Agreement].”
provision obligating
into the
a
contract
to disclose
obligation
had
whatsoever
no
pay
its Union
vol
proceedings
grievance
and arbitration
untary
benefits to which indis
retirement
obligations
contracts or
arrangements,
agreed
and as to
putably
never
which
explanation was
supervisors. Such
to its
concededly
the Union
were
evidentiary
no
and we can see
irrelevant
justify
effort to
entitled.4 The arbitrator’s
production.
legal
reason
of the
alteration
beyond
strayed far
arbitrator had
of an
agreement on the basis
irrelevant
require-
A
scope of the arbitration.
clause in the
discrimination
contrac-
that an
disclose its
ment
ar
impermissible.
unreasonable
to its supervisors
tual
for benefits
terms
scope
exceeded
bitrator has
they
party,
a
proceeding
to which
fails
decision
provision
they provide
face an order
or else
Agreement.5
its essence from
to draw
their Union
similar benefits to
District
will
judgment
employees,
no basis
and maintenance
has
and the case remanded with
law,
reversed
reality,
industry practice.
Cer-
be
to vacate
to the District Court
in direction
tainly
requirement
no such
is contained
directing
In
and the award.
vacated,
preclude the
do not
has
Union. What
Court for a
applying to the District
only alters
amends
here not
wrought
Healthcare,
reviewing
court can set aside
arbitra
Regional
Inc. v.
5. A
Appalachian
4.
AFL-CIO,
*8
America,
vio
if enforcement of the award
Lo
tion award
United Steelworkers of
601,
Cir.),
Corp.,
14398,
(6th
public policy. Eastern Assoc. Coal
cert.
lates
605
cal
462;
—
62-63,
350,
-,
121 S.Ct.
Exxon
531 U.S.
122 S.Ct.
151
U.S.
denied
Co.,
(2001),
An
can
Shipping
remand of the
to the arbitra-
article
section 3 of the
against
appellee
tor.
taxed
Un-
Costs
provision,
so-called
anti-discrimination
ion.
company may
which states that
against “any employee
“discriminate”
be-
ALITO,
Judge, dissenting.
Circuit
membership
cause
non-membership
of
Term,
Supreme
Just last
Court re-
Tracing
the Union.”
this clause to Sec-
proper scope
minded us how narrow our
of
8(a)
(b)
tions
and
of the National Labor
review is in a case such as this.
In East-
158(a)
(b),
Relations
and
Corporation
ern Associated Coal
v. United
majority disagrees
with the arbitra-
America,
57,
Mine Workers
531 U.S.
of
interpretation,
reasoning
tor’s
that “[b]e-
462,
(2000),
121
354
S.Ct.
148 L.Ed.2d
‘employees’
cause
are not
un-
“employer
Court wrote that when an
and
purposes
der the NLRA for
of collective
granted
union have
the arbitrator
bargaining,
employer’s affording
retire-
authority
interpret
meaning
of their
pro-
ment
but not
benefits
“[t]hey
contract’s language,”
have ‘bar-
viding
them to union member
gained for’
construction’ of
the ‘arbitrator’s
possibly
cannot
constitute discrimination
agreement,
...
courts will set
[a]nd
under the anti-discrim-
interpretation
aside the
of
arbitrator’s
Agreement.” Maj.
ination section of the
only
what their
means
in rare
61-62,
instances.”
perworkers
29,
484 U.S.
bargaining agreement
the collective
more
(1987).
364,
terms as In so agreement, the arbitrator relied on