United Electrical, Radio and MacHine Workers of America, Local 1139 v. Litton Microwave Cooking Products, Litton Systems, Inc.
704 F.2d 393
8th Cir.
1983
Check Treatment

*1 III. Conclusion

Wenz and Merrick statutory had a right

to intervene in the summons enforcement

proceedings below. We find inter- timely thus,

vention was sought, and, tax-

payers’ motions intervene improp- were

erly Accordingly, denied. judgment

the district court is reversed. remand On

the taxpayers should be granted leave to

intervene Kis serve their interroga-

tories on government.

Reversed And Remanded With Instruc-

tions. ELECTRICAL, AND RADIO

UNITED AMERICA, OF WORKERS MACHINE 1139, Appellant,

LOCAL COOKING MICROWAVE

LITTON SYSTEMS, PRODUCTS, LITTON

INC., Appellee.

No. 81-2230. Appeals, Court of

United States

Eighth Circuit. May 1982.

Submitted April

Decided Bane Rehearing En

Rehearing 11, 1983. May

Granted *2 Metcalf, Hickey, Michael

Robert D. C. Metcalf, Hickey, Minneapolis, Lazarus & Minn., appellant. Benson, Carrón, Minneap- Reid

Faegre & Minn., olis, for appellee. ARNOLD, ROSS, and JOHN R.

Before GIBSON, Judges. Circuit GIBSON, Judge. R.

JOHN Electrical, Radio Machine The United (the Union) Local 1139 Workers court1 from of a district appeals portions which denies enforcement judgment award an arbitration in favor part of to Litton Microwave and adverse Products, (Lit- Systems, Litton Inc. Cooking denies the Union ton), and which also fees. We affirm attorney award of the district court. judgment are parties and the Union Litton (CBA) ef- bargaining agreement 1,1979, from October to October fective 24,1980, posted Litton 1982. On November unit em- bargaining all a notice inform Minneapolis Litton’s that both of ployees from would be closed plants 27, 1981, and that through March March who did not assist those required to use inventory would be same Later that during that week. time claiming grievance, the Union filed day, 11E of violated section company Renner, United 1. The Honorable Robert G. sota. Judge District for the of Minne- States District any applicable CBA and other sections compensatory. The district court also

by scheduling a vacation shutdown outside denied Union an attorney of the vacation season. appeal fees. This followed. exhausting After the grievance proce- I. The Arbitrator’s Award dure, parties dispute submitted the reviewing arbitration an arbitrator. The arbitrator sustained the *3 award, a court does not reexamine the mer grievance and directed that: the respective claims, its of parties’ but 1. All workers who required were gives deference to the arbitrator’s decision take their vacations in the month of long so it “draws its essence” from the March, 1981, shall granted a second See, bargaining agreement. e.g., collective the summer months of United Steelworkers of America v. Enter prise 593, & Car 363 Wheel U.S. 2. The second vacation shall abe 596-97, 1360-61, 1358, 80 4 S.Ct. L.Ed.2d vacation. (1960); 1424 In re between Arbitration Gra The Union commenced an action in the 975, hams Inc. Service v. Teamsters Local United States District Court for the District (8th Cir.1982); 700 F.2d 420 at 422 United of Minnesota to enforce the arbitrator’s Workers, Food & Commercial Local No. 222 award. The Union moved for preliminary Inc., Processors, Beef 283, Iowa 683 F.2d relief, injunctive parties both cross- Cir.1982). (8th 285 Judicial deference to summary moved for judgment. The dis- arbitration, however, grant does not carte granted trict court the Union’s for motion approval blanche any decision that an injunction part, ordering Litton might Piggly Wiggly arbitrator make. Op comply first part with the of the arbitra- Warehouse, Piggly erators’ Inc. v. Wiggly tor’s award that directed all workers who Operators’ Independent Warehouse Truck required were to take their vacations in Union, 1, 580, Drivers Local No. 611 F.2d March, granted 1981 be a second vacation. (5th Cir.1980). may 583 A court vacate a refused, however, The district court to or- labor arbitration the award if arbitrator der with compliance part second assumption makes a central factual that is arbitrator’s directing award record, grants unsupported puni be with pay. Subsequently, in a Memoran- tive in the any provision award absence of 1981, dum 6, and Order dated October punitive any awards and of district substantiat part court held that the second conduct, ing proof willful or wanton arbitrator’s could not enforced because it based on was factu- contravenes a limitation contained in erroneous al assumption punitive, because it bargaining agreement.2 Bal- See circuits, First, Second, Sixth, 2. A labor arbitration award be vacat also least four Seventh, scope recognized applicabili ed if the arbitrator exceeds the have Act’s submission, guilty ty. Corp. arbitration or is of miscon Electronics Am. v. See Interna deprive parties Elec., Workers, duct so as to of a fair Union of Mach. tional Radio & hearing. 272, Stereotypers’ 1258; Aerospace See Newark Union No. Bell Local 492 F.2d at Morning Ledger Co., Textron, 516, 18 v. Newark 397 F.2d Co. Div. Inc. v. Local 500 F.2d 594, Cir.) (3d (cited approval 921, (2d 1974); Chattanooga 599 in In re 923 Cir. Mailers Union, Chattanooga Arbitration between Grahams Serv. Inc. v. Local No. 92 v. News-Free 975, Co., 1305, (6th Cir.1975); Teamsters Local 700 F.2d at 422-23 420 524 F.2d Press 1315 (8th denied, 954, Cir.1982)), cert. 89 393 U.S. Pietro Scalzitti Co. v. International Union of 378, 150, (1968); City Eng’rs, 576, Operating S.Ct. 21 L.Ed.2d 365 351 F.2d Kansas Local No. Luggage Novelty Union, (7th 1965). & Workers Local No. 579-80 Cir. The Fourth Circuit has 992, Luggage Mfg. Co., opposite position. 66 v. Neevel 325 F.2d See Sine v. taken the Local (8th 1964). Teamsters, 997, 994 Cir. Int’l 644 F.2d No. 992 Bhd. of 965, (4th Cir.), 1002 cert. 454 U.S. 102 grounds vacating An set of alternate 507, (1981). L.Ed.2d 381 Third arbitration award is contained in developed a Act, seems to conflict on (1976). have States Arbitration 9 U.S.C. A § Compare Stereotypers’ Newark Un split developed the issue. among ap- has the courts Ledger Co., Morning ion 18 v. Newark peals No. as to whether the United Arbitra- States applica (recognizing F.2d at & n. 598-99 applies involving tion Act to suits the arbitra- Mfg. Ludwig bility) with Honold Co. v. Fletch- bargaining agreements. tion of collective At (emphasis original). v. Webster Regional Joint Board timore Inc., Cir.1979) Clothes, (4th 596 F.2d dep- the affidavits and reviewing After curiam); Corp. America Electronics (per herein, the Court concludes filed osition Electrical, Radio Union of v. International assumption arbitrator’s factual F.2d Local & Machine year regarding pay-period a 52-week (1st Cir.1974); Drivers & Truck clearly support. Plaintiff admits without Ulry-Talbert Helpers Local 784 v. the March 1981 prior in its brief that Cir.1964). 565-66 shutdown, practice was foregoing grounds are All three of worked nor who neither The first implicated present in the case. inventory shut- used basis for the grounds two served as the in- period for the were not downs decision; the third is raised district court’s his deposi- volved in grounds. affirm on all three appeal. on We tion, 1139’s Fi- [sic], Rocco MeMaio Local *4 that, from Secretary, testified nancial A. ARBITRATOR’S UNSUPPORTED who did through employees 1975 1977 FACTUAL ASSUMPTION inventory did not during shutdowns work court summarized its first The district also period. for the He stat- pay receive vacating the award follows: ground 1979, 1978, and 1980 that ed the week of vacation with ordering and de- inventory plaintiff shutdowns asserted that pay, the arbitrator “[mere- who agreed fendant had in ly granting unpaid an week off results of option not work could have the did wages.” a loss in His reason- net annual taking pay the time off without either ing is as follows: Moreover, under using accrued vacation. Only paid a of full week vacation for 3A, 6E, agreement and 6C of the sections each of the affected meets lay has to em- right defendant remedy. the test of a “make whole” ployees. Merely granting an week off unpaid prohibited by lay-offs are not Clearly, wages. in a net annual loss in results timing The exact of the contract. 52 Assuming payroll periods a week of shutdown, only, is controlled. inventory granting unpaid of week of time guaran- Additionally, employees are not off for a summertime vacation com- pay Those period year. teed 52-week to putes paid employment, 50 weeks of paid who neither work nor use plus vacation, one for a paid week of 51 during inventory shutdown vacation time payroll year. week pay-period year. fact have a 51-week obligation The contractual under the Thus, of granting of a week however, assumptions, set of same to results in a windfall those produce following to an- designed neither worked nor used who compensation: nual 51 weeks of time the March 1981 of employment plus one week va- cation, payroll 52 week [sic] Although a mere error in deter Thus, unpaid year. merely grant an issues is not sufficient mination of factual for a week off summer vacation award, M NF & an arbitrator’s disturb imposing on the equates grievants America, v. Corp. United Steelworkers virtually lay-off. what amounts to a 756, (3d Cir.1975), if the arbi recognized 524 F.2d 759 principle equity per- No of a fact assumes the existence penalty prevailing mits such a on the trator award, an examination dispute. is central to party a contractual dismissed, Cir.1978) banc), er, 1123, (en U.S. (3d Cir.1969) 441 cert. F.2d 18 405 1127 & n. 2420, (1979). 957, 1075 (denying applicability). 99 S.Ct. L.Ed.2d The Fifth Circuit has squarely Eighth decided the expressly judgment. has not reserved See General Helpers 767 v. Stan- Warehousemen & Local issue. Brands, Inc., 1282, dard F.2d 1294 n. 9 so, reveals support record no whatever a court properly consider them. for the arbitrator’s assumption, See United v. Steelworkers America En cannot stand. See Corp. terprise 597, Electronics & Wheel Car 363 U.S. at 1361; America v. International Union Electri 80 S.Ct. at American Postal Workers cal, Workers, 272, Radio & Machine Local Service, Union v. United States Postal 1257; 492 F.2d at cf. Coil Detroit Co. v. 1280, 1285(9th F.2d Cir.1982). A court may International Association of Machinists & also consider other evidence extrinsic to the Workers, 82, Aerospace Lodge # 594 F.2d award that will assist it determining 575, (6th Cir.) (award 580-81 cannot stand whether the award draws its essence from when arbitrator’s factual determinations bargaining agreement. See unsupported by record), cert. 444 Truck & Helpers Drivers Local 784 79, U.S. 100 S.Ct. 52 (1979); L.Ed.2d Ulry-Talbert (outside F.2d at Saw, H.K. Co. v. Porter File & Steel testimony); Electronics Corp. of America v. Products Workers La Federal Electrical, International Union of Radio & bor Union No. 601-02 Machine Local 492 F.2d at (3d Cir.1964) (same). principles These facts). 1256 (underlying say We cannot labor arbitration are in with long-es accord court considering district erred in tablished equitable respect doctrine opinion the arbitrator’s or the post-arbitra of disputes arbitration generally. See tion deposition affidavits. Marsh, (17 Burchell v. How.) U.S. 349-50, (gross 15 L.Ed. 96 (1854) mistake, B. AWARD PUNITIVE NATURE OF *5 not judgment, required mere error of for The district court its summarized second intervene). court to ground vacating for the as award follows: At issue here is the arbitrator’s fac Westinghouse Corporation, In Electric tual concerning a assumption fifty-two Aerospace Division v. International week year. pay-period carefully After ex Workers, Brotherhood Electrical record, amining the we with the agree dis (4th Cir.1977), F.2d 521 the Court stated trict the assumption court that arbitrator’s respect that to vacation shut- “[w]ith Moreover, is clearly without support. we downs, compensatory damages be believe the is so assumption that central to awarded when a breach of the bar- only the arbitrator’s decision that but for the a gaining agreement monetary causes assumption erroneous a different result loss.” Id. at In the absence of would have been reached. these Under cir conduct, punitive willful or wanton dam- cumstances, we conclude that the ages Id. should not awarded. cannot stand. any None of these suffered however, contends, The Union that the Each the exact monetary loss. received district court the misinterpreted arbitrator days provided paid number of vacation as stating assumption, an erroneous factual by losing any for the without agreement, when he “merely stating hypothetical was days to which were entitled. they of work to serve assumption example.” as an In alleged non-monetary the loss- Regarding view of context in the assump- the which plaintiff es of the has failed to employees, tion appears, and the obvious connection Court that have convince the such losses rendered, with the decision the Union’s con- by not week been remedied additional tention must fail. provided. Although argues Union that that defend- plaintiff also contends there improperly justified, district court considered evi ant’s action were [sic] finding that acted will- beyond dence the award itself and the col was no defendant plaintiff agreement. fully wantonly, lective We disa or nor did bargaining that It is gree. Although present proof. arbitrator is not re such clear justified quired findings pay cannot make formalized award of week’s decisions, damages. In the absence of punitive offer reasons for his when he does awards, nominally compensatory, Though and of any provision punitive no Because actually punitive. award was of willful or any substantiating proof the contract warranted provision of conduct, may not wanton an arbitrator exceeded his the arbitrator punishment, punitive damages for make an award of jurisdiction. bargaining agree- of a collective breach Regional Joint Board ment. Baltimore Aerospace Di- Electric Westinghouse Inc., Clothes, F.2d Webster Elec- Brotherhood of v. International vision com- Cir.1979).... Though nominally Workers, Local Union No. trical pay the award of a week’s pensatory, F.2d at 523-24. Because no actually punitive. here was the affected Westinghouse, inAs for this provision of the contract allowed mone any did not sustain employees here part that of his award cannot punishment inventory shut as a result of the tary loss be enforced. [Citation omitted.] exact was employee Each down. analysis. We concur in the district court’s days to which each number of vacation very factually This case is similar to West bargaining the collective entitled under Division inghouse Corp., Aerospace Electric affect inventory shutdown agreement; Electrical v. International Brotherhood of As the timing payment. only ed Local No. concluded, to award an extra court district (4th Cir.1977), cert. 434 U.S. these circum under week’s (1978), 54 L.Ed.2d 783 award, unau punitive stances would be by on one of cases relied district agreement. thorized Westinghouse court. the Fourth Circuit Westing- distinguish The Union tries finding affirmed arbitrator’s by arguing this case house from bar employer had violated the collective “forced” to take employees here were allowing gaining agreement by insufficient Union; negotiations with the how time however, record, is no evidence in the There ever, portion it vacated that of the arbitra any suffered the affected award that ordered three additional tor’s Each result of Litton’s actions.3 harm as a who days not to work employee who chose *6 shut during took their vacation vacation shutdown, va- paid and thus used reasoned that such an down. The court time, for voluntarily. did so Counsel cation punitive: compensatory, award was not but argu- as much at oral the Union conceded respect employees to the who took With ments, The arbitra- although grudgingly. shutdown, the their vacation em- of tor himself noted [the “[m]ost arbitrator ruled: to assist in volunteered ployees] who had have reserved three Employees who inventory returned to scratch particular pe- of vacation for this days the af- sheet.” If sign-up names from the three additional granted riod should be names on had left their employees fected in 1976. days of vacation during the shut- worked this sheet and had clear, however, that none of these It is vaca- down, have they would not used any monetary suffered loss. employees have and would tion the shutdown number of Each received exact time for vacation preserve able to been he entitled days vacation to which was addition- assigned Litton year. later in the losing any days without of work. during the shutdown employees to work al volun- insufficient number

because an substantially ap- harmed with loved ones is to that 3. The arbitrator’s conclusion effect in nothing speculation being pears to take his/her more than and constrained to be fancy: melancholy March in Minneso- month of alliterative ta. Company’s argument I cannot credit sup- no record reveals Our examination employee in this that no has been harmed port this conclusion. plans Surely any who made worker matter. looked forward to a summer and Thus, teered. the Union cannot The validly Union contends that this court should claim that were “forced” to use not give light effect to section in 21C of this during the inventory court’s decision in Western Iowa Pork Co. v. Packinghouse

National Brotherhood & Dairy Local No. 366 F.2d 275 C. OF VIOLATION EXPRESS (8th Cir.1966), which construed similar CONTRACTUAL PROVISIONS provision. In Western Pork Iowa this court Although not discussed dis observed that such language another Order, trict court’s Memorandum and we way of articulating principle enunciated further, believe there is a even more funda in United Steelworkers of America v. En- mental, for vacating reason the arbitrator’s terprise Wheel & Car 363 U.S. at award, namely, express the violation of pro at that an arbitrator is “con- visions in the bargaining agree collective interpretation fined to application of ment. bargaining collective agreement.” The Section 11A of the bargaining collective court provision held that the did not clearly agreement specific sets forth the amounts dispute take the or award outside oí of paid vacation that are entitled specifically granted authority of the arbi- to receive: trator. 11A. Annual vacations with pay, subject presented here, however, issue is far provisions SECTION, to the this will different from presented granted to Western in accordance Iowa is Pork. Here court following dealing with the schedule: question with a ambiguous terms with one of service Employees year days with two of service Employees years days bargaining agreement, but awith five with of service Employees years days remedial explicit award that violates con- eight with Employees service years days provisions. parties tractual If the meant with fifteen Employees years service 20 days anything they when drafted 11A sections Employees years twenty-five 21C, if it true that an award is service 25 days legitimate only long so as it draws its es- Section 21C the collective bargaining sence from the collective bargaining agree- agreement directs that arbitrator’s “[t]he ment, monetary portion of the arbitra- within decision shall be terms tor’s award reject cannot stand. We Agreement” to, and that shall not add “[h]e Union’s contention that section is a 21C from, alter, subtract change the terms.” boilerplate mere provision. Despite express provisions, these the arbi- Relying on Carpenters’ District Council of trator compensatory ordered vaca- Anderson, Greater St. Louis F.2d tion time with pay, reasoning that: (8th Cir.1980), the Union further contends grant merely unpaid week “[T]o *7 “stipulation” that a gave the the parties a summer vacation equates imposing to on express arbitrator to the authority fashion grievants what virtually amounts to a did, he remedy even if it could be found lay-off. recognized No principle of equity the arbitrator his authority exceeded permits such on penalty prevailing Here, however, under the contract. there in party dispute.” However, contractual “separate stipulation” was no to settle a an sit arbitrator does not to dispense his lawsuit, as there was in Carpenters’. What justice; own brand of industrial he sits to to attempts as a characterize apply agreement parties. between the “stipulation” request is a that Litton made By ordering that the time compensatory to remedy with the arbitrator that he state the if pay, the arbitrator bestowed an he a violation. We not unauthorized windfall to those found do read this employees voluntarily request to express who chose not to be a waiver of limita during work the inventory shutdown which those em- tions in the bargaining agree collective ployees who did work did not receive. ment. that, ARNOLD, concurring in Judge, given contends

The Union further arbitrators in fashion dissenting part. the latitude afforded and part ing remedies United Steelworkers that there was no abuse of discre- agree I Enterprise Wheel & Car America v. motion for at- denying tion in Union’s 1361, 597, at the arbi at U.S. As to Part I of the Court’s torneys’ fees. here, a breach of the having trator found however, respectfully I dissent. opinion, agreement, had bargaining 24,1980, Litton notified its November to, did, On and fashion implied authority compensate Litton’s that there would be appropriate remedy employees to has Although an arbitrator employees. week in March and during shutdown one latitude, powers his are not considerable work then all who did not the resolution of labor dis unlimited in vaca- to take that week as would have putes. The arbitrator is confined to the had, during past, Litton in the closed tion. application of the collec interpretation and not forced the summer months and had bargaining agreement, although tive and he take employees to ambiguous he is language, construe day That same inventory shutdown. authority disregard modify or without claiming that Litton grievance union filed plain unambiguous provisions of the and acting was in violation of the collective-bar- See, e.g., Truck Drivers & agreement. gaining agreement. parties The did Helpers Ulry-Talbert Union Local 784 v. dispute. From March 23 to resolve 564-65; Co., Monongahela 330 F.2d at Pow company closed to take inven- March 2332, er Co. v. Local No. International all tory assigned work to Brotherhood of Electrical 566 F.2d who had volunteered to assist with invento- (4th Cir.1976); 1198-99 Textile Work approximately bargain- and to 180 other ry ers Union of Local Union No. 1386 employees. There was no work for ing-unit Co., v. American Thread 291 F.2d were employees, they forced (4th Cir.1961). take their vacation in March. Pursu- We have considered the Union’s remain- Bargain- ant to 21 of the Collective Section ing contentions and find them to without ing Agreement (Designated p. Record 64- merit. 66) parties dispute submitted their The Attorney II. Union’s Claim for Fees arbitration. The Union contends that the dis 1,1981, A held on and a hearing May was trict court improperly application denied its decision rendered on June attorney fees that were incurred The arbitrator looked to the terms of the litigation. statutory there is no au Since 11E provides: contract. Section fees, awarding attorney thorization for 11E. will schedule em- Company The exceptional since we find no circumstances far as is consistent ployees’ vacations so faith, such as bad we say cannot district plant operations satisfy good court abused its discretion in denying employees. Company desires attorney Union an award of fees. See option closing plant has the Alyeska Pipeline v. Wilderness Service Co. 247, 258-59, putting production it on a limited sched- Society, U.S. 95 S.Ct. 1612, 1616, 1622, (1975); 44 L.Ed.2d 141 ule the vacation season. The Drivers, Sears, General Local No. 120 v. Company grant will leaves of absence Roebuck & during a a limited number of *8 Cir.1976); Richardson v. Communications shutdown, employ- so that such Workers of may during ees schedule vacations other Cir.), cert. 429 U.S. 97 S.Ct. the re- year, provided weeks of the that (1976). 50 L.Ed.2d 86 need quirements of the business and the schedules will out- production The af- to meet judgment of the district court is firmed. of vacations to be weigh scheduling during

taken other than particularly the vacation be deferential reviewing when remedy. an arbitrator’s When an arbitrator is commissioned to part: Section 11G states in interpret apply and collective bar- may 11G. The all em- Company require gaining agreement, he is bring to his ployees ... to take their dur- vacations judgment informed to bear in to order ing plant during period shutdown a reach fair solution a problem. This defined as the vacation season if especially is true when it to comes formu- Company provides (4) a minimum four lating remedies. There the need is for prior months notice of the proposed shut- flexibility meeting wide variety down. situations. The draftsmen never The arbitrator construed as Section 11G thought have specific remedy what providing right require Litton no to that particular should awarded meet to employees take vacation at a time not with- contingency. in the “vacation season.” The “vacation of America v. Enter- Steelworkers season” included the summer months and prise 593, 597, Wheel & Car 363 U.S. (D.R. 19). not March. By forcing some 1358, 1361, (1960). S.Ct. L.Ed.2d 1424 to take vacations harm, It is difficult for to judges say what March, shutdown Litton violat- any, if in this case suffered. ed the terms holding contract. This simply expertise Courts do not have the is dispute. not in that labor arbitrators have to resolve dis- In order remedy to breach of con- putes between labor management and and tract, em- (1) arbitrator decided . appropriate determine an award. ployees who had to take The arbitrator usually labor is chosen be- March were entitled to a second vacation parties’ cause of the confidence in his months, (2) the summer and knowledge common law of the second vacation should be a paid vacation. shop personal and their trust in his judg- opinion his the employees suffered a real bring ment to bear considerations compensable loss in money when they were expressed which are not in the contract forced to take paid vacation in March. He as judgment criteria for .... The ablest specifically found the following: judge be expected bring cannot Finally, I Company’s cannot credit the experience competence same and to bear argument employee that no has been determination, upon grievance, of a harmed in Surely any this matter. work- because he cannot similarly informed. er who plans made and looked forward United Steelworkers America Warrior a summer vacation with loved ones is Navigation & Gulf 363 U.S. substantially by being harmed con- 1347, 1352-53, (1960). L.Ed.2d 1409 strained to take his/her vacation in the Supreme In view of the Court’s clear com- melancholy month of March in Minneso- judg- mand that we defer to an arbitrator’s ta. The high probability rather ment, especially remedy, to his I would being than the vacation a shared experi- enforce the arbitrator’s award in its entire- typical grievant ence the spent much of ty- alone, this time in March family as gives setting The Court three reasons for friends were scheduled to work or attend aside the (1) arbitrator’s award: arbi- school. trator, incorrectly assuming that Litton (D.R. 22). lay could not employees, improperly I am not I sure should have awarded awarded compensation particular relief, or kind of March; indeed that being (2) remedy laid off in arbitrator was correct in interpreting of puni- constitutes unwarranted award are, contract. But questions those in all but damages; (3) tive the award contra- cases, business, the clearest the arbitrator’s venes in the a limitation contained collec- Moreover, not ours. we are tive-bargaining agreement. admonished *9 402 receive, limit it does not mally but opin- that the arbitrator’s agree I not do remedy a authority to fashion facts misapprehended arbitrator’s that he

ion shows case, a where, there has been in this paid vaca- as to award central to his decision collective-bargaining working hy- A on the breach of contract. proceed He tion. did all as regulate explicitly includes year agreement work cannot that a normal pothesis relations, it and paid labor-management one week of pects work and paid 51 weeks of in gaps. 101 to fill duty out that vacation, pointed and he is the arbitrator’s 50 America v. Warrior here would receive involved United Steelworkers Co., at work, paid 363 U.S. plus Navigation supra, one week of paid weeks of & Gulf vacation, may vacation, unpaid 580-81, 1352. The contract one week 80 at plus S.Ct. required pay were ordered to relief that is company specify unless not violation, com- week. He also contractual but every the second vacation conceivable limitations, long as as pay for the second express the absence absent pared unfair, read courts lay-off. clearly a I do not not remedy week of vacation to is holding as the arbitrator’s award. See passage opinion in the enforce should con- right no under the Co. v. Communications company Telephone had General 452, (6th has This case 648 F.2d lay employees. tract Workers of If, for as such. District Council lay-offs Cir.1981); Carpenters’ to do with nothing 776, Anderson, 619 F.2d paid employees had v. example, company Louis Greater St. Fabricut, an un- Inc. v. Tulsa given (8th Cir.1980); then them for 51 weeks and week, Warehousemen, unpaid Drivers, Help vacation for the 52nd paid General 227, to a analogous ers, have been Cir. 52nd week would Local 597 F.2d a breach of Confectionery it would also be lay-off, 1979); Bakery but Local & no saying contract. The arbitrator of America International Union Workers assumed, cor- simply 1235, 1237 (5th more than that. He Baking Cotton at are not issue here. rectly, lay-offs Cir.1975), 423 U.S. cert. lay- that no Everyone agree now seems (1976). L.Ed.2d 644 S.Ct. During time. at the relevant offs occurred the arbitrator’s It is true March, everyone in either inventory week weeks of work paid gives vacation. No paid or had to take worked vacation, more than weeks of paid and two one was laid off.1 contract received had the they would have paid vacation Nor the award of does gives the This Court not been broken. damages. The arbitra- punitive constitute work, paid one weeks of paid workers 50 employees, tor believed that the clearly week of vacation, unpaid one week of March, having to take their vacations less than vacation, pay yearly for a total harm. An award of compensable suffered had the contract would have received they the summer remedied just as much They get not been broken. their this harm and insured that “summer for, but provides the contract vacation as lay-off. mere vacation” not be a take right their deprived are they time of preferred view, my the arbitrator did Finally, the contract right guaranteed by year, the em- authority by granting exceed his right is arbitrator. This by the construed in addition summer vacation ployees arbitrator did something. The surely worth days to' the number trivial, he was and I believe not think was it normally would have under is deciding. If there rights in so num- within his sets out the agreement contract. not unfair to remedy, it is nor- a doubt as to days a worker should ber of vacation authority, rea- ambigu- is not a have exceeded his 1. Even if the arbitrator’s discussion refusing suggesting to enforce the award.” that Litton son for and could be read as ous Enterprise Wheel & employees, America v. Steelworkers of laid off we would could not have supra, at U.S. at uphold “A ambi- Car have to the award. mere still award, guity opinion accompanying permits that the arbitrator which the inference *10 resolve the doubt against party that has

broken its contract.

I full, would enforce the award in

therefore respectfully I dissent in part. America, Appellee,

UNITED STATES of Dwight EVERROAD, Appellant.

Garnet

No. 82-1114. Appeals, States Court of

Eighth Circuit.

Submitted Jan. 1983.

Decided April Stanton, Indianapolis, Ind.,

Nile Ronald Hack, Mo., Louis, L. appellant. St.

Ronald M. Asst. Kayser, Atty., U.S. Des Moines, Iowa, appellee; Richard C. Turner, Moines, Iowa, Des on Atty., U.S. brief. HEANEY, GIBSON,

Before ROSS Judges.