*1 WARE- OPERATORS’ WIGGLY PIGGLY INC., Plaintiff-Appellant,
HOUSE, WARE- OPERATORS’ PIGGLY WIGGLY TRUCK INDEPENDENT HOUSE UNION, De- LOCAL NO. DRIVERS fendant-Appellee.
No. 77-3306. Appeals, United States Court Fifth Circuit.
Feb. March Rehearing Denied *2 JONES, RUBIN, BROWN
Before Judges. Circuit RUBIN, Judge: B. Circuit ALVIN reported relatively The small number contesting the arbitration countless cases labor-man- proceedings convened to resolve parties’ to the disputes attests agement this method оf general satisfaction with Here we resolving problems. industrial exceptional case in which the with the deal contested; proceeding later arbitration is whether the arbitrator exceeded the issue scope authority. permissible of his Con- griev- cluding under the tеrms of arbitration, the submitted for arbiter ance parties to fully was authorized both de- grounds the issue between them on cide relied, he we affirm the district on which summary judgment in favor of the court’s union.
I. 1976, the the union
In be- negotiating gan covering employer’s over- By August the ne- the-road truck drivers. draft, аgreed but had on a gotiators yet approved had not it. In meet- union arranged company’snegotiator ing with agent, the request at of the union’s business could agent said the contract business agree to company if the would sev- ratified changes company draft. eral negotiator agreed make these concessions agree the union would to insert this if clause:
Any driver who becomes uninsurable any Company’s insurance carriers subject discharge. will be immediate concurred, agent company The business quoted typed a revised draft with the sen- Mott, III, McFall, John E. A. Norman z, as tence inserted Section Orleans, La., Heusel, New Cornelius R. signed of both later representatives plaintiff-appellant. it. Greer, La., L. for de- Shreveport, Edwin later, Strickland, a driv- Two Mr. months fendant-appellee. er, emplоyer’s in- discharged when the him uninsurable. carrier declared surance comput- on a insurer’s action was based driving procedure The arbitration rec- set forth print-out er of Mr. Strickland’s provides: applica- three ord that showed violations ble the insurer nor em- laws. Nеither Arbitrator shall no ployer with Mr. Strickland communicated change, amend, to, from, add subtract Considering him improp- about his record. modify or amend the terms *3 erly discharged, grievance filed the union a provisions Agreement. of this on asserting: his behalf Contending clear, that the contract is the (z) 21 of Purported of Article the Section employer asserts that the arbitrator exceed- a term of the con- valid authority by ed his modifying rewriting or Second, driving my record is a tract. it and seeks have the award vacated. consequence of cоm- direct and inevitable award, The essence of the the employer penal- be cannot used pany policies and contends, therefore not was drawn from the Third, any prior to ize violations the me. agreement. bargaining collective Neither of this contract cannot be effective date party contends that the bargain- collective my disadvantage pursuant to an used to invalid; agreement ing is company’s the understanding agreement and between position binding, is that all of it is the Further, the the contract. I union’s is that thе arbiter had alleged I deny that am uninsurable as in 21(z) that simply decide is not part a company’s the letter. of the contract. provided, grievance
As the contract
the
II.
presented
was
supervi-
to Mr. Strickland’s
joint
sor
a
and then to
committee. When
policy,
Natiоnal
embodied
the Na
dispute,
these steps
Act,
to resolve the
failed
the
tional Labor Relations
as amended
23,
union
gave
1947,
173(d)1 ,
notice
its desire to arbitrate.
June
29 U.S.C.
favors
§
The parties selected an
from
orderly
arbitrator
a
the
labor-management
resolutiоn of
list of
the
supplied by
grievances
through
names
Federal Medi-
arbitration.
United
ation and Conciliation
Manufacturing
Service
sub-
Steelworkers
American
1960,
grievance
564,
mitted the
1343,
to him without enter-
363 U.S.
S.Ct.
ing
a separate
agreement.
into
submission
L.Ed.2d
United
Steelworkers War
At
Co., 1960,
no time
employer
574,
did the
contend that
rior Gulf&
Nav.
363 U.S.
the grievance
part
of it was not a S.Ct.
United Steel
proper subject
Enterprise
for arbitration.
Corp.,
workers
Wheel
Car
L.Ed.2d
S.Ct.
evidentiary
The arbitrator held an
hear-
An agreement
between
an
ing
discharge
and concluded that
the
was
disputes
and a union to arbitrate
that
improper,
in part because Mr. Strickland
arise between them in the
is
future
valid
had
been given any prior warning
not
and enforceable. Textile Workers
Union
had not been given a chance to defend
Mills, 1957,
Lincoln
353 U.S.
S.Ct.
by showing
himself
there
thаt
were valid
912,
courts, 149 may formally Local etc. General Electric act Co., 922, 1957, denied, 1 F.2d cert. Cir. 250 agree into a enter written submission 1958, 938, 780, 78 S.Ct. U.S. they or may merely ment ask the arbiter may 813. Even this issue be submitted to decide the written as it has been arbitration, however, binding if has there posed in their conciliation efforts. When been a clear demonstration that the so, they empowered do have effect contemplated it. United Steelworkers griev him to decide the issues stated Navigation Co., 1969, Warrior Gulf & ance. The itself becomes the 7, 1347, 7, 583 n. U.S. S.Ct. 1353 n. agreement submission and defines the lim See, g., L.Ed.2d 1409. e. Metal Product authority. its the arbitrator’s Arbitra Union, Torrington Workers Local 1645 contract, tion is matter International F.2d Cir. Ladies’ Workers’ Garment Union v. Ashland However, once the have Industries, Inc., gone their beyond promise to arbitrate and nom. v. Interna cert. sub Alfin denied actually submitted an arbi issue an Union, 419 Garment Workers’ tional Ladies ter, we must look both to their but L.Ed.2d S.Ct. to the submission of the issue to the arbitra to arbitrate the initial contract tor authority. determine his Wash modified submission ington-Baltimore Newspaper Guild v. The grievance. Washington Co., D.C.Cir.1971, Post 143 U.S. III. App.D.C. Lee *5 ease, Olin Corp., party ques Mathieson Chemical D.W.D. In this neither Va.1967, 271 F.Supp. 639. See also arbitrability dispute tioned of the either the America, Textile Workers’ of Union AFL- grievance stated in the or of the issues set CIO, Local Union No. 1386 v. American it; grievance forth the entire Thread 4 Cir. 291 F.2d presented to the arbitrator without reserva Truck-Drivers, etc., Union, Locаl only tion. It was after he had the decided Ulry-Talbert Co., 8 Cir. employer adversely to the 21(z) issue cf. Corp. Continental Materials v. Gaddis sought question of that it to raise the his Mining Co., jurisdiction. In International Brotherhood (commercial arbitration). Washington Employers, of Teamsters v. If parties the enter into submis Inc., F.2d the agreement, sion this later contract is the that, court found in similar circumstances legal substitute pleadings; joins it the arbitration, submitting an issue to issues between parties empowers objection to had waived the arbitrator to decide it. Beatty, M. Lа jurisdiction. Whether in tech arbitrator’s bor-Management Arbitration Manual possi legal nical terms the surrender of the (1960); Kagel, Anatomy S. aof Labor Arbi dispute argument ble that certain (1961); tration 55 Aksen, N. Levin G.& eds. Arbitrating Labor (1974); promise Cases to arbitrate should M. covered Trotta, Labоr Arbitration (1961); 87-88 C. present of be considered a waiver is not Updegraff McCoy, & W. Arbitration La of rests, it moment. On basis waiv whatever Disputes bor (1961). 72-73 See also Ameri er, contract, estoppel the result or new can Association, Arbitration Voluntary La to that the submitted the arbiter Rulеs, bor Arbitration III, Part paragraphs authority regard defines his without 7 and 8. jurisdiction arbiter’s then prior legal obliga whether had a not limited to the issues dispute. tion submit the could have compelled been submit; is, therefore, It irrelevant our decision agree on this method of resolv ing disрutes that company might properly whether the were compelled to submit to arbitration.2 refused submit to the arbitrator the va-
2. See Beatty, (1960). M. Labor-Management Manual Arbitration 21(z). are we faced Nor lidity of Article authority the arbiter deciding
with what America, of STATES UNITED had the might have exercised Plaintiff-Appellee, contract, Mr. solely under the been unjust. discharge was In that Strickland’s LARKIN,
event, Supreme surely we would heed Thomas A. “an arbitrator is con- Court’s admonition: Defendant-Appellant. interpretation application fined to No. 78-2124. bargаining agreement; he the collective dispense his own brand does not sit Appeals, Court United States justice.” United Steelworkers industrial Fifth Circuit. Corp., & Enterprise Wheel Car 1358, 1361, 80 S.Ct. Feb. presented with Here the arbitrator was He grievance.
the issues in the contained reinterpret рarties’ was not free to dis- pute own terms. When and frame it in his “purported
selected to decide whether Sec- (z) not a tion of Article 21 of the contract is contract,” valid term of the he was directed docu- to determine whether that ment was or was not to be сonsidered in
deciding grievance. His rest- of its grievance, ed on the and in view terms, whether the con- we need not decide
tract itself of the validi- permits arbitration
ty provisions. Compare Leyva of one of its *6 California, Ltd., 9
v. Certified Grocers of (the mere fact modify agree- cannot ment does not mean he cannot determine provisions
what are in fact аgreement). not contend that we does should inquire into the basis for the result
reached the arbiter. The contract itself so, making forbids us to do his award final. reasons, For judgment these of the dis- trict court is AFFIRMED.
JONES, Judge, dissenting: Circuit challenged provisions of the contract plain unambiguous. are The Union knowingly wrote them into the contract. authorized to write
The arbitrator them out of the contract. upheld. should be I dissent.