San Antonio Newspaper Guild Local No. 25, and American Newspaper Guild, Afl-Cio, Clc v. San Antonio Light Division and the Hearst Corporation

IV, of the mandate Article Sec- Herrera, Jr., Antonio, Frank San tion 1.” plaintiffs-appellants. Tex., is the second directive in this Antonio, Fryburger, L. Bruce San dispute in- award which led to the here Tex., defendants-appellees. By January 10, 1972, volved. letter of TUTTLE, Before GODBOLD and Manager Company Business MORGAN, Judges. Circuit subject to im- advised Sweet that was reinstatement, mediate but that Sweet should first contact the business office TUTTLE, Judge: Circuit his resolve financial details of brought by This action was the San however, parties, reinstatement. The (hereinafter Newspaper Antonio Guild agreement could not reach on the finan- Union) under of the Section 301 Labor implementation cial of the award. The Management Act, amended, Relations Company’s position was that the amount 185, 29 U.S.C.A. for enforcement of an § it would otherwise have Sweet as owed arbitrator’s award. On the basis of a pay period prior for the re- his subsequent different arbitrator’s inter- ($4,386.26) set- instatement should be pretation original award, the dis- against off earnings the total of interim summary judgment trict court entered $3,560.00, pay his severance in favor of the and the Union $4,760.28, pay in lieu of notice appeals. part now We affirm computa- Under this method of $340.02. part. verse in $4,274.- tion there existed an May 6, The which, facts are as follows: On 04 in Sweet’s favor 1971, Sweet, sports reporter, claimed, obliged John repay. he was discharged by Sweet, however, and was at view that given pay time severance pay the award $4,760.28 amount of lieu of him the full amount of back for the period specified, notice in the amount of In due only permissible $340.02. de- grieved discharge pur- being course payments duction therefrom bargaining agree- unemployment suant to a collective compensation provided ment then in effect which for his case were not made. He therefore disputes final Company’s proposed resolution arbitra- declined the finan- September settlement, although tion.1 ar- On cial he offered hearing prior bitration Ar- was held before return to work to resolution of the Agreement, pertaining plaining party briefly VI Article to the other adjustments disputes, provides per setting giving forth the facts rise part grievance, ground complaint, tinent as follows: “(1) grievance committee, desig- sought.” A the action Guild, (Emphasis added). nated shall be established amicably procedures to settle with a committee VI Article then outlines the Publisher, griev- appointed securing followed arising agreement. provides ances under this arbitration of a (2) finally A shall be submitted that “the award the arbitrator only by binding.” written notice from the com- final shall be financial issues which he advised does not owe be worked out with the earnings Union’s attor- Sweet lost as the inter- ney. earnings, im severance and dis- missal exceed lost remained at odds with the by $4,274.04. January 20, result that on (4) The Arbitrator does not requested join the Union to jurisdiction to par- award either request a to Arbitrator for ty additional remedies. clarification of his award. The Union premise refused to do so on the that the (5) E. will be rein- Mr. John original unambiguous, award was mak- without loss of stated forthwith seniority.” provision any no of the deduc- tions Company which the claimed. the basis of Arbitrator Horton’s On Florey’s January 20, Company interpretation the On of Arbitrator grievance against Union, pur- original Company moved for filed a award the the grievance machinery judgment summary in the court. district suant seeking contending agreement, Union, bargaining The that Arbitrator nullity, interpretation pay Horton’s was a return of the dismissal summary judgment en- in lieu of notice received cross-moved award, forcing Shortly thereafter the Arbitrator Sweet. Union brought averred, re- court the this action district Union quire the kind from for enforcement Arbitrator deductions money owed to The the court action was back Sweet. award. While pending, pro- judgment entered in favor the invoked district court the cedures of the and directed the Union American Arbitration As- “comply sociation to with the award of Arbitrator secure arbitration for including Horton, purpose interpreting the return of all mon- the financial as- pects Florey’s original upon due reinstatement.” ies Arbitrator award. Thereafter appeals judg- from Union that jointly the Union selected Arbitrator argues ment. It here that Arbitrator Guy Horton before whom a second arbi- Florey’s unambiguous was hearing April 1, tration was held on ju- Horton Arbitrator was without Although parties fully par- 1972. both interpret risdiction to ticipated hearing, in this Moreover, urges, if the Union even Ar- throughout tended Hor- Arbitrator bitrator Horton’s is to be jurisdiction ton was without to consider given effect, the district court erred in finding the matter and that a on the ordering Union, not re- which did merits would be of force effect. money, repay ceive the Upon hearing Arbitrator Horton con- overage existing in the amount of the cluded as follows: Sweet’s favor. “(1) jurisdiction The Arbitrator has primary It is the con Union’s interpret the award of Arbi- Company’s grievance, tention that Florey. trator Peter seeking interpretation of Arbitrator interprets The Arbitrator Florey’s award, was not an arbitrable award of Arbitrator Peter matter and that as a result Arbitrator require deduction of inter- Horton did not have to con earnings, im contention, course, severance and dis- it. sider is Such earnings missal from properly subject judicial due review Company. post-award proceedings.2 However, is subject, place, now well-established al- the first to arbitra- though bargaining agree- courts refuse to review the merits tion under the collective any given ques- ordinarily arbitration ment for the one courts underlying dispute See, g., tion whether labor determine. e. United Steel Work- peculiar under the this each contended circumstances of portion clearly sup- unnecessary case we find it to decide the of the award ported position, otherwise in- there existed issue. While we be- disagreement legitimate clined to that even tween them a Company’s implementation. under the its actual Arbitrator usual standard the view did not an arbitrable was likewise of matter,3 “incomplete Arbitrator Hor- and indefinite.” think that instance, having He ton’s award in said: parties, solved the paragraph “While 2 of the award given effect. Fieri full non definitely grievant provides debet, sed valet. factum is to be made whole loss earnings, it is not clear whether difficulty we have with the are confined to those he argument Union’s it would have Compa- ignore have received us Horton’s award al ny during discharge period together or Arbitrator and enforce should include received from award. This we be unable to do would employers. other The award is silent under circumstances. Arbitrator as to severance and dismissal think, award, we at least inso matters, far it as relates to financial ambiguous

was and thus unenforceable We with Arbitrator Horton’s unless and until clarified.4 conclusion. The term “make whole for Paragraph provided earnings” 2 of loss in the context of simply be, was, interpreted to be “made this case Sweet could earnings” variety ways. hand, whole in a for loss in for the On the one specified period. Although claimed, might as be con- agreement not, ers of America v. and Gulf Navi tlie Warrior before us. If tlie gation Co., 574, 1347, 363 U.S. 80 S.Ct. itself would an not constitute ar- (1960) ; 4 L.Ed.2d 1409 Teamsters Local bitrable issue. Freight Lines, may be, special however, Unions v. Braswell Motor There circum (5th 1968) ; Safeway grievance 392 F.2d 1 Oir. stances where invocation of ma Bakery chinery might appropriate following Stores v. tionery American Confec be Union, Ordinarily Workers International 390 award of an arbitrator. (5th 1968). F.2d 79 Cir. would occur collateral where a arises from an award which is self- Supreme 3. The Court has indicated that a executing. See International Association particular dispute should not be deemed Aerospace of Machinists Workers may non-arbitrable “unless be said with Aerojet-General Corporation, v. 263 F. positive assurance that the arbitration Supp. 343, (D.C.Cen.D.Cal.1966) ; Dis suspectible interpre- clause is not of an 50, trict United Mine Workers v. Revere dispute. tation that covers the asserted Copper Brass, Inc., F.Supp. 204 349 Doubts in should be resolved favor of cov- (D.C.Md.1962). This not such a case. erage.” United Steel Workers of America clearly Arbitrator in award was Co., Navigation v. Warrior and Gulf tended to be and would have been self-ex supra U.S., at of 363 at 582-583 1353 of ecuting ambiguity therein, but for an 80 S.Ct. below, discussed which left the at Utilizing this standard note that the interpretation. odds over its agreement bargaining here at is- upon which Arbitrator Horton’s au- Hanford Atomic Metal Trades Council sue— thority necessarily Company, to act rested —makes v. General F.2d Electric 353 provision grieving (9th 1966) ; the award for 302 United Cir. Steel Work- which, according Bearing to the ers of America v. Timken Roller language itself, (6th 1963) ; Company, be contract “shall 324 F.2d Cir. Bather, binding.” 494, final and Local Union No. International machinery may invoked, be either Brotherhood Electrical Workers Company, grievances Brewery Proprietors, F.Supp. Union or “all arising also, agreement.” (D.C.E.D.Wis.1968). under this See Interna- We doubt op- the award of an arbitrator —as tional Association Machinists v. Crown posed procedure securing Company, to the arbi- Cork and Seal 300 F.2d 127 (3rd 1962). tration —falls four corners of within Cir. relating exclusively of America v. American Workers to what strued Manufacturing wages Company, 363 U.S. 564 would have earned Sweet 1343, wrongful- S.Ct. 4 L.Ed.2d 1403] [80 had he not been (1960); regardless ly discharged, United Steel Workers of whatever Naviga might America Gulf have re- v. Warrior & other outside income he 574, ceived, tion event 363 U.S. S.Ct. [80 which obliged (1960); 4 L.Ed.2d would be make him whole 1409] wages. particular United Steel of America v. those Yet this Workers meaning Enterprise Corpora struction strains the Wheel Car tion, imply words “to make whole” which U.S. S.Ct. [80 ought appel L.Ed.2d other sources of income to be tak- 1424] computing lant’s that once the en into what arbitra account acted, earnings. duty tors actually But to have it is the lost interpret court and enforce extent? The contended put exactly than to send the matter rather arbitrators, same financial back end condition as delay discharged, have been in had he further involved not been sending However, and no the matter can avoid better. think, however, concluded as ed. that all of the well that within the mean- We foregoing accept philosophy award the cases obliged simply elected to to see to it that where the that Sweet arbitration, good put position disputes their as submit as if he by discharged they completely had not been overage resolved and that arbitration, only partially inured to his rather than benefit. We con- clude, therefore, para- resolved.” 353 F.2d at second 307-308. graph of Arbitrator award was conclusion, think, Indeed such a we ambiguous. Supreme by dictated Court’s admoni- tion that arbitrator’s “[i]t next arises as to 5 bargained for.” struction which was whether this court should resolve itself ambiguity original in the course of action normal agree We think not. We with the con cases, then, the court to re is for by clusion reached Appeals the Court of original mand the matter to the arbitra for the Ninth Circuit in Hanford Atom in this tor for clarification.6 To do so ic Metal Trades v. Council General Elec ges case, however, pointless would be a Company, supra. tric analogous In an already clarifi ture. There has been a situation that court said: Florey’s award, al cation of Arbitrator arbitrator, “We share the beit a different Arbitra view the district opinion court that the tor Horton. Nonetheless Arbitrator the arbitra- [of tion precisely Horton has done what Arbitra committee] clarification interpretation. tor do we to remand We also would were share the ambigui him, is, view the district court that resolved original ty performed was a task careful ref first the arbitration erence to the terms of the collective bar gaining committee and not the court, agreement. We, therefore, properly and that the are court re- appropriate manded the resolu matter to that an the arbitration view already too-lengthy dispute committee for such tion of this clarification and interpretation. remanding way See would in no be served United Steel Philadelphia Transport Company, 5. United 228 Steel Workers America v. En v. terprise F.Supp. (D.C.E.D.Pa.1964). Corporation, But Wheal and Car 423 593, 599, Foundry Company Lynchburg see, U.S. 80 S.Ct. America, L.Ed.2d United Steel Workers 1968). (4th Cir. F.2d 259 4, supra. also, See cases cited at n. See Transport Workers Union Local No. 234 argument yet In in before district court another to Arbitrator original terpretation counsel for the stated: award. On of his binding accept on the as basis we implemented “an award cannot be interpreta parties Arbitrator Horton’s piecemeal you implement but have to fully think, finally tion we award, has entire and this been parties. resolves issue along. problem haven’t We implement been it able because court, however, did The district haven’t been able to simply more than enforce Arbitrator on Union what means.” directed In addition he Horton’s award. Consistently therewith the had repay submitted to Arbitrator Horton the is- $4,274.04 amount of the isting ex paragraph sue of how 2 of Arbitrator favor, this, notwith implemented, award should be standing the fact Arbitrator Hor being position ton, construing thereafter, then and the financial award, only determined that Sweet aspects fully of the matter should be forthwith, should be reinstated but that solved imple- so that the award could be he was not entitled to entirety.7 This, then, mented in its already him make whole because he had the issue which Arbitrator Horton took $4,274.04 received more than would have under advisement. necessary place been him in the same Having interpreted Arbitrator Flor- financially as he ey’s award to mean that discharged.'5' been in had he not been anything not owe Sweet for lost We thus think was error for the court earnings, Arbitrator Horton concluded judgment against to enter he “did not have in Sweet’s favor. remedies,” either additional conclude, moreover, We indicating, course, thus that as a interpreted, must be deemed matter he could not add to nor subtract conclusive of the financial issues be- from originally provided by remedies parties including any tween the Florey. Although claim Arbitrator the Com- Company that the pany have had for a had claimed that it was entitled to overage refund of the in Sweet’s favor. refund existing in interpreted 7. Arbitrator Horton hearing Arbitrator 8. At the before Horton Arbitrator requiring award as Company stipulated “the deduc- counsel earnings, tion of interim severance and dis- issue involved as follows: “ pay earnings by by missal from Florey due Sweet [The] award Arbitrator Company.” parts: part Horton then noted that being in two One rein- Company “the statement, does not parts owe Sweet being lost the other made earnings earnings, whole, as the interim sever- language used, I think was the he you ance guess and dismissal up exceed lost earn- and I could divide it into ings $4,274.04,” and aspects concluded that he the financial jurisdiction pay part did not have to award either back thing the award which is the party additional remedies. do today, We not see that we’re here for in Sweet, this award indication that find in out Mr. Horton’s meaning let alone the Union part which had never of that of the award monies, Florey ceived the was to reimburse the Arbitrator and how we can Company existing implement Bannick, in it.” Later Mr. merely president Sweet’s favor. Horton concluded testified: earnings interim implement, Sweet’s us, and the like “You can’t it seems you were to be implement deducted from the amount the award unless the en- Company part which the owed him as lost tire award. And of that is Mr. earnings part since such deductions Sweet’s reinstatement. Another earnings, exceeded lost of it is the settlement of the financial anything. Certainly not parts owe Sweet matters. all of it would have resolved.” Horton, favor, in in- that from what it would him have owed Arbitrator Florey’s award, terpreting there as back should deducted Arbitrator earnings provision no his interim must have severance concluded received, be found and notice he had for such a refund could original award; with he would otherwise the result that rather than the Com- owing pany’s decided he lacked he Sweet was indebted Moreover, grant remedy. $4,274.- such a the amount of Flor- must be assumed that which the insisted ey’s comprehended pay. of the fi- Sweet and the Union took nancial relations Sweet was entitled final and pay, his decision was to be since the full amount of noth- must, binding. Inasmuch as par- deducted therefrom. theWith therefore, pursuing interpretations his award to have intended ties de- dispositive grees financial apart, relations company asked for arbi- parties and since Arbitrator tration to determine what was unable to find that award award meant. The Union refused and provision for a refund to the suit to filed enforce existing any overage in favor of Company proceeded in- with the Sweet, we think the of refund terpretive arbitration before arbitrator longer open all of the is- and that Horton, with the Union but dis- fi- have been sues between the puting jurisdiction. Horton inter- nally a conclusion is resolved. Such preted had said to mean the Company’s completely in accord with the following: consistently-stated position it was —The award deduction of Horton’s satisfied with Arbitrator earnings, interim severance and dis- imple- sought only award and that it pay, missal due entirety. ment Company. 2). (|f part, part Affirmed in reversed nothing, —The owed Sweet proceedings not remanded for further since the deductions earnings by $4,274.04. lost exceeded opinion. inconsistent with this 3). (¶ juris- —“The arbitrator does not have Judge (concurring GODBOLD,Circuit diction to award either addi- dissenting part part): 4). (|[ tional remedies.” opinion I concur in the written n —Sweet must be immedi- reinstated Judge portion except Tuttle last ately. 5). (|f in which he concludes subsequent proceedings In the interpreted, “must be deemed conclusive rejected District arrangements Court the court the of the financial between contention of parties including the any arbitrator the claim that the rejected authority, Horton was without have had for a refund overage the contention of the that Flor- favor.” Sweet’s ey’s keep award meant that Sweet could discharged he When Sweet was was any deductions, all his back without paid pay plus pay in severance lieu of accepted the contention of the contesting He filed notice. a paid that monies to must Sweet be discharge. his ren- funded, and the Union to return directed unambigu- which, (1) dered an award money.1 the ously reinstat- said that should be Sweet forthwith, ambiguously ed said interpreting Florey’s and Hor- In subject that Sweet should “made whole” ton dealt the matter first with any earnings. Company of- required loss of The whether the award fered to contended reinstate Sweet but there be from accrued deductions Obviously wrong. money paid to the direction the Union was The had not been to it. may larly may question in the situated not have re- pay. or He answered that same, overage, step tained the all of the His next to or affirmative. was making to the and unable raise the sum the effect of deduc- sider tions, paid by question the two to the deadline fixed he said and to that here, case, things first, In owe arbitrator. such a doesn’t the — second, employee anything 3), “the los- (¶ this could result in the Sweet job jurisdiction its his related benefits —a arbitrator not have does job deter- from which had been award either additional remedies” unjustly employee 4). Paragraph (If mined had been clear. What is3 discharged. paragraph does 4 mean ? ton’s return fusal interpretation remedy may a former trator’s the Company’s right contingent upon the return of dismis- bitration awards which sal or period has remedy ed.) Company. He reduces the does lation violation of the and Sweet’s would create an tor set a deadline within which Sweet pany may grant overage cannot be considered as a vio- contingent upon Three tor The arbitrator ^[*] granting monetary the opinion dealt he money employee’s to make not particularly do to severance significant paragraphs been Company requests overage. it ^[*] grant cover award. The arbitrator’s company’s time, damages overage. to do so. arbitrator cited, contract or ^[*] does not refusal and the is not convinced such a situation. reinstatement type have his forfeit his and that to true where the arbi- with has working agreement relief (emphasis implementation ^[*] is pursue any legal are based to one whether requested requested paying the Com- within a certain relief. confined case law (emphasis to return the may prejudice in the nature reinstatement requested provide the may ^[*] found, matter of fashion language job. recovery shall arbitra- arbitra- added.) Awards be said remedy upon he has to or ar- ^[*] Hor- Quite This add- nor the the by To a a v. industrial Horton matter of return of the propriate. possible, and he proceeding. mented it sion does not sit to construed implementation that whether working agreement agreement. tion because Sweet’s failure open ships money Horton’s earlier to leave was clearly, Horton construed “any quoted tration under return the fore, was not It Enterprise Corporation, seek money money is legal remedy for other could not be clearly, thought, S.Ct. damages language working agreement and, recovery at open way justice.” obligations existing bargaining agreement; “[A]n arbitrator least did not violate the overage Horton’s 1358, 1361, Indeed dispense within reason of Horton said that must occur the contract. outside the recognized would have been forums. because arguable which he dovetails penumbra extent statement made United Steelworkers was a matter award and interpretation application of the may overage 4 L.Ed.2d not a violation the failure scope he considered other 363 U.S. own brand In could whether exactly that further have.” scope could the arbitra- outside the amount to return short, confined relation- working of arbi- through judicial was, Equally recover conclu- imple- of his award there- order inap- right there 593, left the he as power part be the observed or or that Sweet arbitral was a any discharged employee controversy other simi- “merits” of the over inter7 brought thing pretation said said no in to ar such which was —Horton arguable thing it was And it as well rather because bitrate. —but proper by parties intended that Horton’s task a the whether Horton’s Florey’s award) (interpreting footnote award for an arbitrator. See function binding respect opinion accompanying to fi majority final and 2 of and with all dealings parties. majority ques avoid these nancial between the I text. The by peculiar by concluding that in the must confess that I am baffled that tions reasoning. parties pointless the to The fact that would be circumstances it Florey yet intended to and Horton desired and that remand award the first implementation ap interpretation full Horton’s award be a settling another that propriate accept not mean that is to all matters does resolution Hor ' Horton, Judge everything. binding. did the as ton’s as settle interpreter opinion says, found “we think that Ar Tuttle’s instance, every not that the did settle bitrator Horton’s award award first thing. he, having second ar He found that as the resolved between given bitrator, power parties, effect,” to settle ev full should be lacked erything. panel accept binding repeats, “we as on the All members interpretations are interpreta Arbitrator Horton’s that his finally accepted. majority sweep think, fully all tion Yet the away grant parties.” a favor Sweet resolves issue judgment disputed pragmatic approach appropri That is an able on a matter the “full merits of which neither arbitrator ate one. But resolution” reached Horton included his determi reached. overage nation that yond was be issue my reason, supporting As a brothers scope of arbitration and was disposi- say as that to treat the awards pursued proceed matter to be tive Com- of all issues accords ings. majority give do not “full ef pany’s it was satisfied only carry fect” to his award but it out sought im- with Horton’s award dispute, to the extent it resolved the Compa- plement Indeed insofar it held un issue ny of Horton’s did enforcement seek they reject resolvable in arbitration accompa- did with award. But it so award and construct a new on contention, nying in the District made shorthand, their own.2 Stated appeal, that Horton’s on Court and new award is that the issue has disposed refund is- finally been resolved arbitration because repay by obligating sue overage resolved, intended al forthwith. That do so and to though the arbitrators resolve not accepted the District contention was Court, and Horton found it to be unresolvable. appeal lost but on greater length, Stated at somewhat Compa- point. The fact that on that

my say brothers have done is to that the is- argued all ny the awards settled right lost its return of seek settling sues, including the refund issue overage, not because said probative all favor, at not in its keep mon was entitled issues, including the awards settled thing ey Florey no such settling said issue the refund —and — fa- event— true said that had because vor. This would bargained for; Judge far as the and so Note the reference Chief Brown Safeway Bakery, construction concerns v. American arbitrator’s decision Stores contract, Inc., (CA5, 1968) busi- the courts at 390 F.2d overruling easy their “slip [ping] habit, him inter- because ness off into pretation is different deciding Judges, of the contract the merits” of arbitra- Enterprise interpre- his.” United Steelworkers tion matters. “The U.S., Corp., supra, at bargaining agree- of 363 at tion S.Ct., 4 L.Ed.2d 1429 of of 80 at ment is a arbitrator. the arbitrator’s which construction arguable seems me not even when specifically the awards left the matter open. appropriate is, result in this case course, Company open to leave the recovery seek remedies.

Whether it is entitled to recover would

be determined in proceeding, if brought. B., pe- Wolly, L. Michael R. S. N. titioner; Nash, Counsel, Peter G. Gen. Counsel,

NATIONAL LABOR RELATIONS Hardin, Patrick Associate Gen. BOARD, Petitioner, Mallet-Prevost, Marcel Asst. Gen. Coun- B., sel, Atty., Spielberg, L. R. Paul J. N. Washington, C., on brief. CO., D. D. Respondent. H. FARMS No. 72-2195. Mich., Detroit, Schwarze, H. Thomas Thoma, Keller, respondent; Mc- United States Appeals, Court of Detroit, Schwarze, Sixth Circuit. Toppin Manus, & Mich., on brief. Argued June 1973. McCREE, Before CELEBREZZE and July 24,

Decided Judges, MOYNAHAN,* Circuit Dis Judge. trict Judge. CELEBREZZE, Circuit petition by This case is before us on the Board for enforcement of its order 1972, reported of June at 197 NLRB accompa- 47. In No. that order and the nying decision, rejected Board Trial Examiner’s recommendation that complaint found be dismissed and Respondent (hereinafter Com- pany) 8(a)(1) and had violated Sections 8(a)(3) failing of the Act in to recall employees for summer work who 8,1970. July had been laid off on * Moynahan, Jr., bargaining agent. The Honorable T. Bernard this issue was Since Judge, Chief United States District Court remanded to the this Court Board Kentucky, Co., for the Eastern District of sit- v. D. H. Farms F.2d N.L.R.B. ting by designation. (6th 1972), presently Cir. and is pending (see note before the Board 1. The Board found that also infra), herein enforcement of its order 8(a) (5) had violated Section of the Act 8(a) insofar as relates the Section by altering policy respecting recall of sought violation is employees consulting laid-off without petition. That determination assumes Union. recognition right Union’s as the

Case Details

Case Name: San Antonio Newspaper Guild Local No. 25, and American Newspaper Guild, Afl-Cio, Clc v. San Antonio Light Division and the Hearst Corporation

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 28, 1973

Citation: 481 F.2d 821

Docket Number: 72-3302

Court Abbreviation: 5th Cir.