United Food and Commercial Workers, Local Union No. 7r v. Safeway Stores, Inc., and Sandra Cortez, Rule 19(a)(2)

covering the crust the thermal decision that warnings

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or other case, however, the decision that all this ground

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was was inevitable FAA

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render the decision to

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For the reasons stated

ment of the district court is AFFIRMED.

UNITED FOOD AND COMMERCIAL

WORKERS, 7R, LOCAL UNION NO.

Plaintiff-Appellant, STORES, INC.,

SAFEWAY

Defendant-Appellee, 19(a)(2) Cortez, Rule

Sandra

Defendant-Appellee.

No. 87-2547. Appeals,

United States Court of

Tenth Circuit.

Nov. entering judgment against the interest. The Union con-

for back (1) has no appeal tends on Cortez award; (2) standing to enforce the to seek authority by his the arbitrator exceeded assessing part pay the back award of delay in against the Union because of its (3) bringing grievance; and the dis- Cortez’ monetary enforcing in trict court erred interest, including against judgment, part, part, reverse in Union. We affirm and remand for determination of damages. amount of I. of a

The arbitration at issue arose out grievance brought by against Cortez Safe- way. May Cortez was laid off effective immediately grieved Safeway’s 1984. She position failure to recall her to another that 20, 1984, May had been available on con- tending Safeway that had the re- violated provisions call of the collective meetings settlement When be- Safeway proved tween the Union and un- successful, Safeway the Union informed of dispute its intent to arbitrate the a letter dated June pursue Union did arbitration for nearly year. July a Union representative advised Cortez that there stemming was no contractual violation grievance. represent- Buescher, from her The Union B. Thomas of Brauer & Buescher, P.C., Denver, Colo., up ative followed the conversation with a plaintiff- for 10, 1985, informing letter dated October appellant. Cortez that the Union would her withdraw Eurich, (Gregory R. Goldman A. Sandra grievance right ap- and that she had a Hart, Denver, Colo., of Holland & with her peal to the Union’s Executive Board. brief), Denver, Hart, on the of Holland & successfully appealed Colo., Cortez her case to defendant-appellee Safeway for Board, the Union’s Executive and on Janu- Stores Inc. ary Safeway the Union informed McKAY, TACHA, Before pursue of its intent to the matter in arbitra- BRORBY, Judges. Circuit hearing An tion. arbitration was held on August 1986. The arbitrator found TACHA, Judge. Circuit Safeway had violated the collective plaintiff, bargaining agreement by failing United Food and Commer- to recall (the Cortez, cial Local 7R Workers Union Number and that Cortez was entitled to Union), appeals grieved position from an order of the dis- instatement in the denying remedy pay trict court the Union’s motion to back as a for the violation. delay bringing vacate an arbitration award in favor of Because of the Union’s Cortez, arbitration, defendant Sandra the matter to the arbitrator Stores, Safeway (Safeway), portion pay defendant Inc. assessed a of the back preju- her counterclaim Safeway dismissal of noting that stipulation provided as of that responsible for the dice. Part held “should not be of the Union and inattention follows: indifference griev- of Cortez’ prompt resolution

toward stipulate that no parties further award did not set ance.” The concerning in this action judgment final rather award- pay, but the amount of back portion of the suit to vacate a Plaintiff’s May period ed “back for entered until this award be wages, July ... less through for upon Cortez’ motion Court has ruled received compensation salary, or other award and of arbitrator’s confirmation her in the interim.” entry judgment. Safeway to vacate the sued The Union stipulation, the court entered Based on that assessing liability for portion of the award dismissing counterclaim Cortez’ an order modify Union and pay against prejudice. pay liability all back the award to assess response filed its to Cor- The Union then joined court Cortez against Safeway. The award, motion to confirm the pending tez’ Federal Rule of necessary party under as a standing lacked contending that Cortez 19(a)(2). Cortez filed Rule Civil Procedure under the Arbitration seek confirmation counterclaim, had alleging that Union “party to the she was not Act because representation in duty of fair breached its Act. under section 9 of the arbitration” prosecution of her its connection with argument rejected this The district court granted par- The district court grievance. holding August in the “disingenuous,” Safeway for and summary judgment tial agreed to stipulation the Union had 26th to vacate the motion Cortez on Union’s right pursue confirmation Cortez' award, deci- holding that the arbitrator’s judgment in fa- The court entered award. from the collective drew its essence sion $25,261.07 amount of of Cortez in the vor agreement. 29, 1986, August from plus interest the Un- August Cortez and On award. date of the arbitrator’s to dismiss Cortez’ jointly ion filed a motion motion to alter After an unsuccessful settle- prejudice without while counterclaim filed this judgment, the Union amend part pending. As negotiations ment were appeal. dismiss, stated of the motion to that: II. to be a motion is not intended [T]his the issue of Cortez’ We first address any claim that defendant resolution of and enforce- standing to seek confirmation interest ac- may have for Sandra Cortez award. Union ment of Award, cruing on the Arbitrator’s “standing.” under- challenges We Cortez’ (without plaintiff, understood is argument to a claim standing stand admitting to the entitle- confessing or the Fed- is barred under either that Cortez interest) that the de- post-award ment of Act, or sec- 9 U.S.C. Arbitration eral § apply for an award of will fendant Cortez Labor-Management Rela- 301 of the tion pay from accruing on the back interest seeking Act, from 29 U.S.C. tions § award. date of the arbitrator’s or enforcement of judicial confirmation a motion for confirma- later filed Cortez rights es- award of contractual pursuant to tion of the arbitrator’s by the collective tablished (Arbitra- Act Arbitration the United States 1-15, Act), seeking interest 9 U.S.C. §§ entry of the award and from the date of A. of back for the amount judgment agree that Cortez barred We filing After the Union. interest due from en confirmation and confirmation, seeking judicial prior to from but for the motion award under of the arbitrator’s response, August on forcement filing of a the Union’s Act Act. The Arbitration stipulated to a the Arbitration the Union 26th Cortez 944 controversy or to the coverage spect “con amount excludes from citizenship employment any regard ... work

tracts of of ... to the without engaged foreign interstate com ers parties. bargain 9 U.S.C. merce.” Collective § 185(a). 301 does not Section 29 U.S.C. § employ ing agreements are “contracts jurisdiction suits exclude federal meaning this exclusion. ment” within for employees viola- brought individual Postal Unit

American Workers Union bargaining agreements. of collective tions Serv., Postal ed States 823 F.2d contemplates contrary, To the “section Cir.1987). Act, (11th there Arbitration employees by and individual suits fore, generally inapplicable to arbi labor employers.” as between unions as well Paperworkers tration. See United Int'l Inc., Freight, v. Anchor Motor Hines Misco, Inc., (1987); Posa 9,n. L.Ed.2d (1976). L.Ed.2d Assocs., Inc. v. Asocia de Puerto Rico das Empleados de Puerto cion de de Casino provision Despite section 301’s indi- Rico, (1st Cir.1989).1 We suits, employee can vidual that Cortez entitled to seek thus hold is not if he or has exhausted only sue she the and enforcement of arbi confirmation grievance provided in procedures exclusive award under the Arbitration Act. trator’s agreement. bargaining the collective Hines, Supreme that the held Court B. sidestep griev- the employee an [cannot] The Union that Cortez is contends machinery in the provided ance [collec- seeking en from barred confirmation bargaining agreement] and un- tive forcement of the arbitrator’s award under attempted he to utilize less the [first] Labor-Management the Re section 301 of procedures settling for his contractual Act lations because her counterclaim that indepen- dispute employer, his with his repre duty breached its of fair the Union against employer in dent suit the the prejudice. was dismissed with sentation Court dismissed. District be [will] Ordinarily, allege an employee must 563, This Id. at 96 S.Ct. at 1055-56. “ex- duty representation the in of of fair breach Sipes, requirement,” Vaca haustion 386 to avoid his or her sec order dismissal of 184, 903, 913, 171, 87 17 L.Ed.2d U.S. S.Ct. suit for failure to exhaust exclu tion 301 (1967), strong flows the federal the collec sive contractual remedies under favoring grievance pro- pe policy Under the contractual tive case, “giving culiar facts of this the fact that Cor as a of content to cedures means representa duty tez’ of fair collective-bargaining agreement breach the de- prejudice claim was dismissed with tion termining parties’] rights and obli- [the irrelevant because we hold that Cortez has “promoting goal it” the gations under exhaus otherwise satisfied the section 301 Bowen v. United peace.” See of industrial requirements. tion Serv., 212, 225, Postal States 459 U.S. 588, 596, (1983). 74 L.Ed.2d 402 S.Ct. provides; Section rights employee’s the collective under bar- for violation of contracts be- Suits gaining protected are the employer organiza- tween an and a labor duty representation, union’s of fair which representing employees in an indus- tion always good act in requires union affecting try commerce as defined this honesty purpose in the faith and of exer- chapter may brought dis- ... cise of its discretion on behalf of indi- having trict court United States employees Ford represents. without re- vidual jurisdiction parties, 9, they may 108 S.Ct. at 372 n. but are not 1. The federal courts look to Arbitration bound to so, see, guidance fashioning e.g., Act for federal common do American Postal Workers govern arising 473-77; suits section 301 of law under Dynamics Derwin v. General (LMRA), Labor-Management Act Relations 484, (1st Cir.1983). Corp., F.2d Misco, see at 40 n. § 29 U.S.C. 484 U.S. 330, 338, Huffman, Motor seeking Co. 345 U.S. where an upset (1953). award, S.Ct. 97 L.Ed. 1048 implicate which would policy concerns undermining bargained-for In order to seek confirmation and grievance procedures. enforcement of the arbitrator’s award un (1) der section Cortez must show that justification A allowing the ex she has grievance proce exhausted the requirement haustion to bar individual em dures under collective ployee’s suits under upon section 301 rests agreement, Republic Corp. Steel v. Mad duty representation, union’s of fair dox, 614, 616, 13 prevent which serves as the “bulwark to (1965), (2) L.Ed.2d 580 or that she falls arbitrary union conduct individuals exception within an to the exhaustion re stripped of traditional forms of redress quirement. The recognized exceptions two provisions federal labor law.” (A) are where either the union or the em Hines, at at ployer repudiated has the collective bar (quoting Vaca, 386 U.S. at 87 S.Ct. at gaining agreement’s grievance procedures, 912). If the fairly union is representing Vaca, 386 U.S. at 87 S.Ct. at employee, employee’s interests are (B) where the union duty has breached its adequately protected. As the “fairness” of representation of fair by acting arbitrarily, representation decreases, the union’s how discriminatorily, faith, or in bad id. We ever, employee’sprotection so does the find that Cortez has satisfied the exhaus justification for the exhaustion bar. requirement because the Union re Thus, if the union press only “refuses to pay fused Cortez’ back and chal perfunctorily presses individual’s lenged the award due to its own adverse claim,” Maddox, 379 U.S. at 85 S.Ct. at interest in the enforcement of the award. 616, or otherwise arbitrarily, acts discrimi The purpose fundamental of the exhaus- natorily, faith, Vaca, or in bad 386 U.S. at require employees tion bar is to pursue to 87 S.Ct. at then the union has grievances their through bargained-for a duty breached its representation fair and grievance procedure part of the employee the is entitled to sue under sec collective has, effect, 301. Id. The union in Hines, 424 1055; U.S. at 96 S.Ct. at deprived employee the ability to Maddox, 652-53, 379 U.S. at 85 S.Ct. at proceed in the bargaining agree collective grievances When are resolved grievance ment’s procedure by ceasing to through bargained-for procedures those the employee’s representative function as the goal peace of industrial self-govern- and where the right proceed to in rests the ment nearly is more prop- attained. Cortez representative union as and not the em erly presented grievance her to the Union. Thus, ployee. when the union ceases to act grievance The pursued, was after numer- employee’s representative, the the em delays, ous to final arbitration. Under the ployee has “exhausted” his or her remedies bargaining agreement, collective find- “[a] under the bargaining agreement. collective ing or award of the arbitrator shall be final occurs, Once this exhaustion employee the upon and conclusive parties the hereto.” Maddox, Vaca, is entitled under and Hines pursued grievance Cortez had thus her to sue under section 301. remedies as far as she could under the case, In this the pay Union the bargaining agreement. collective pur- The refused portion of the pose pay liability back requirement assessed exhaustion —that byit the grievances industrial/commercial arbitrator’s award. The be settled through challenged court, Union also bargained-for procedure the award in —has seeking portion to vacate Allowing thus been served. Cortez to seek award assessing liability against modify and it and to arbitrator’s confirm enforce award does not bargained- pay undermine the award to assess all the back liabili- grievance procedures, ty against Safeway. By refusing pay but rather en- finality hances them underscoring portion their of Cortez’ challenging back and conclusiveness. This is not a situation the award because of its own adverse inter- refuse en- no choice but to courts have arbitrarily acted and ceased

est Union of the award. forcement representative. We to function as Cortez’ employee pur- an has thus hold that where Enterprise Wheel Steelworkers v. United grievance procedures to the final 593, 597, sued the Corp., U.S. & Car stage (1960). bar- 1358, 1361, authorized under collective 4 L.Ed.2d gaining agreement, a favorable to the arbi scope obtained of the issues submitted union, authori part against also controls the arbitrator’s trator award, a matter of contract ty. union fails to honor or enforce the “[Arbitration required cannot be to submit ceasing employee’s thus to function as the any dispute which he has arbitration representative, then the has ex- agreed so to submit.” United Steelwork her under the col- hausted his or remedies Co., Navigation ers v. & Warrior lective and is enti- Gulf 4 L.Ed.2d confirmation and enforcement tled to seek Employees see Retail Store (1960); of the award under section 301. Groceries, Local 782v. Sav-On (10th Cir.1975). par F.2d 502-03 III. however, agree to extend the may, ties authority in the submissions. arbitrator We next consider whether the Ship, Navigation Inc. v. Matson See Sun authority awarding exceeded his Co., Cir.1986) (“Even (3d F.2d pay against scope of our the Union. beyond the went assuming questions review is restricted. contract, provisions arbitration entered, Once an arbitration award is gone beyond have their ‘once finality that courts should afford the supplement promise to arbitrate and have process weighs heavily in fa- agreement by defining the issue to ed the award, vor of the and courts must exer- arbitrator, must submitted to an courts great cise caution when asked to set look both to the contract and to submis primary pur- aside award. Because ” (empha authority.’ determine his sion to agreements pose behind arbitration is to Corp. added) Mobil v. In Oil (quoting sis expense delay of court avoid the Union, dependent Oil Workers proceedings, judicial it is well settled that Op (3d Cir.1982)); Piggly Wiggly very review of an arbitration award is Warehouse, Piggly Wiggly Inc. v. erators’ narrowly limited. Operators’ Indep. Truck Driv Warehouse (10th Turley, 38, Foster 808 F.2d Union, 1, 580, ers Local No. 611 F.2d Cir.1986) (citations omitted); see Ormsbee (5th Cir.1980) (“If parties a the enter into Grace, 1140, Dev. Co. 668 F.2d agreement, is submission this later contract denied, Cir.), cert. (10th legal pleadings; joins the substitute for (1982). 84, 74 L.Ed.2d 79 parties empow the and the issues between it.”). Extension review ers the arbitrator decide When we labor authority through decisions, of the arbitrator’s sub the terms of the collective bar only missions is allowed to the extent that gaining agreement constitute one of the express not an the submission does violate upon an principle limitations arbitrator's provision bargaining the collective authority. agreement. interpreta- arbitrator is confined to [A]n application of the collective bar- “[Wjhere question of the sub gaining agreement; he does not sit to vague, is mission to the arbitrator dispense jus- his brand of industrial own of the set aside award arbitrator will may guid- of course for tice. He look subsequent proceeding, in a court unless it sources, many yet his ance from award re can be shown that the essence of the legitimate only long sulting so as it draws award was not drawn from Kroger bargaining bargaining agreement.” from the essence collective collective Teamsters, agreement. When the arbitrator’s words Co. v. International Bhd. of (6th Cir.1967); obligation, an 380 F.2d 730-31 infidelity manifest to this cf. Groceries, for the damages F.2d at 502-03 there could be no Union’s Sav-On delay grievance (holding Kroger inapposite question bringing when without by Safeway. submitted to did not involve rem- arbitrator some violation Because the edies, but included reme- arbitrator’s award issue submitted fails to restrict dies). parties limit the discretion may from whom relief would be avail- arbitrator, through able, such submit- interpret the arbitrator could it as ting precise of the issues to statement encompassing remedy was whatever neces- through providing express the arbitrator or sary permissible under the collective bargaining limitations in the collective compensate agreement. 380 F.2d at 730- Kroger, damages arising out of parties scope 31. When the fail to limit the the breach. however, submission, we will affirm say We cannot arbitrator’s if it arbitrator’s award draws its es- contrary express language to the sence from agree- the collective bargaining agreement. collective contrary ment express and is not to the distinguishable case is Our the situa language of that See Mistle- tion Local 1837 v. Maine Public Service Express Expressmen’s toe v. Motor Serv. Co., (D.Me.1984), F.Supp. in which (10th Cir.1977). court held that a submission of “what

We will with an not interfere arbi remedy?” shall be the did not broaden the trator’s decision it can “unless be said with authority. In Local positive assurance that contract is not court had found that the arbitrator’s award susceptible interpreta to the arbitrator’s changed binding “past contractually prac tion.” Sterling Co. v. Colo. United tices,” violating express thus an “no modi Beef Food & Commercial Workers Local Un provision bargain fication” of the collective (10th Cir.1985). ion No. 767 F.2d ing agreement. merely Local 1837 follows long argu as the is even arbitrator “[A]s prohibition confirming Mistletoe’s on arbi ably construing applying the contract contrary awards trator’s that are to the acting scope within the his authori express provisions bargain of the collective ty, that a court he is convinced committed ing agreement. Unlike Local serious error suffice to does not overturn bargaining agreement collective between Misco, his decision.” 484 U.S. at 108 Safeway express the Union contains S.Ct. at 371. limited Given this standard of imposing duty on provision both review, we find basis in the sufficient col make an “earnest effort ... to settle bargaining agreement lective and the lan [disputes complaints] promplty such guage of the issues to the submitted arbi [sic],” requesting which includes arbitra uphold trator to the arbitrator’s award of promptness.” tion “with reasonable This pay against the Union. supports damages upon provision imposing breaching party, delay on the the because We first whether address the arbi part conceivably mag of either could scope trator’s decision within the was of nify employee or losses suffered the the the him. issues submitted to The party. other the framed issues as follows: Company Did the violate the Labor The arbitrator stated that “[i]t Agreement when it failed to recall Griev- Company clear that the should not ... be layoff May ant Sandra Cortez from on responsible held indifference for the 20, so, 1984? If relief is to what Griev- prompt inattention of toward the Union ant entitled? grievance.” resolution of Whether Cortez’ Safeway only party is the mentioned in the the arbitrator drew this conclusion from question dealing breaching language first the of the the collective agreement. unclear, question remedy, agreement admittedly but as to “arbi however, Safeway’s generally is not so vio- tration awards need not delineate limited. agreement reasoning, lation of the reasons or least when prerequisite is a at may employee’s any remedy, grounds gleaned as for the award be need for legal and not precedents Dev., the laws the record.” from Ormsbee supposed of general arbitrator considerations 1147. The mere fact that the from at ” allegedly public to fairness interests.’ also made a reference during course does of the arbitration2 43, at 373 Misco, at 108 S.Ct. 484 U.S. result, statement change this as this original) Grace (emphasis (quoting W.R. necessarily analysis his full does not reflect 759, 461 U.S. Local & Co. v. proper is a of the Fairness 76 L.Ed.2d 103 S.Ct. as the determination long consideration (1983)). the col- fairness draws from its essence enforce an arbitra- A court’s refusal to Enter- argreement. lective collective-bargaining award under a tor’s Wheel, 363 at 80 S.Ct. at prise pub- contrary to agreement because it is 1361. specific policy application is a lic that the arbi- contemplated it is doctrine,

“[WJhere in the com- general more rooted remedies for contract trator will determine law, may that a refuse mon court finds, have that he courts no violations pub- contracts that violate law enforce disagree judg- authority to with his honest policy. That derives from lic doctrine Misco, respect.” ment in that U.S. at notion that will lend aid basic no court Although might 108 S.Ct. at 371. we upon who of action to one founds a cause differently this had decided we have issue illegal immoral or act.... arbitrator, say that we cannot been (citations omitted). In to the addition Id. award did not its essence draw that a narrow- requirement public policy be bargaining agreement. collective defined, policy a ly “the violation of such clearly not to if an award is must shown IV. Id. at 108 S.Ct. be enforced.” that even if Union contends “A an award at 373-74. refusal to enforce the col the award draws its essence from as- speculation rest on more must than bargaining agreement, it should not lective violation of sumption” regarding such a contrary public be enforced because it is policy. Id. 108 S.Ct. at public at public policy. According to the case, In context the Union of this favoring res policy dispute as a clearly public policy to show viola- failed a if compromised olution mechanism is arbi tion. We fail to see how the enforcement damages impose are trators allowed to has the arbitrator’s in this case against bringing employee griev unions any significant tendency undermin- toward ances. Union further contends policy ing favoring the arbitration interest requiring conflict of is created fact, disputes. Supreme Court labor simultaneously prosecute employee upheld apportionment of has and to dam claims defend itself damages against a Bowen v. union. See delay. ages for a conflict of interest Such Serv., 459 U.S. United States Postal allegedly causes for the Un disincentive 74 L.Ed.2d 402 attempt to a violation of ion to establish (1983) (stating approves appor- that Vaca employer. part on the tionment). potential Any conflict of inter- recently stated, Supreme As the Court employee clearly est between union and by submitting precise refusal an arbitra avoided a a court's to enforce could be arbitrator, or interpretation tor’s of collective bar statement issues to the [a limiting authority gaining agreement] by limited to situa the arbitrator’s with interpreted appropriate language in the collective bar- tions where contract as public poli gaining agreement. Enforcing the arbitra- explicit would violate “some dominant, policy here cy” that is “well tor’s award reinforces of defined by ‘by permitting to be reference arbitration the arbitrator’s and is ascertained union, during pay against to award a 2. The Union states in its brief that hesitant” back arbitration, only that in his view was "fair" that course of the the arbitrator in- it pay delays grievance. processing if it a them that the least bit union in formed he was "not 949 permissible it is arbitrator to establish exact the extent that decision to stand to award). amount of the essence of the drawn from scope of the issues and does not exceed the granting prejudgment of inter submitted. award est from the date seeking

in action to confirm that award federal question is a of law entrusted V. discretion of the district court. the sound Finally, contends that the Union Lodges v. United Air enforcing the district court erred in (2d Cir.1975), Corp., 534 F.2d craft to the extent that it di arbitration award denied, cert. U.S. entry judgment in the amount rected an of (1976); Casting L.Ed.2d 87 Stroh Die Co. $25,261.07, interest, plus accrued of v. International Ass’n Machinists & of entry of the date of the award until Workers, Aerospace Lodge No. judgment. (E.D.Wis.1982). F.Supp. 68 On the record that the district court erred in We hold us, say cannot that the district before we monetary judgment. The entering a arbi- granting in in court abused its discretion is silent as to the amount of tration award terest in this case. merely that damages. The award states “grievant pay peri- for the is awarded back VI. through July May od of judgment of the district court is [according schedule be- to an allocation part, in therefore AFFIRMED REVERSED Safeway], any the Union and less tween part, pro- and REMANDED for further wages, salary compensation other re- ceedings opinion. in accordance with this Apparently, ceived her the interim.” only in the record for the amount basis McKAY, Judge, concurring in Circuit damages of awarded is the affidavit of part: part dissenting LaSavio, repre- Fred the Union’s business I dissent from the court’s conclusion in sentative, part: states in relevant which part III that the arbitrator’s drew Since Arbitrator Bardwell issued his party’s its essence from the submission of decision, have advised we been Safe- quarrel him. I have issues to While no way that before deductions for interim opinion, I the rest of the court’s find it earnings resolving any ques- and before unnecessary points to reach those because damages, mitigation tion of the total agree I cannot that the arbitrator’s award pay to which Ms. Cortez is entitled draws its essence from the contract and $33,342.84. Under the Arbitrator’s de- being necessary the submission —the latter cision, $25,- Local 7 would be liable validity the award. See United of that amount. 261.07b Naviga Steelworkers v. Warrior & Gulf clearly figures in this statement reflect Co., 80 S.Ct. any the amount due deductions for (1960)(“A before can L.Ed.2d 1409 earnings mitigation damages. interim required not be to submit dispute agreed he so to juris- retained which has The Arbitrator submit.”); dispute the extent that v. Enter diction over this “to United Steelworkers agree upon prise Corp., 363 are unable to Wheel & Car 1358, 1361, 4 of the amounts and alloca- L.Ed.2d determination (“We Therefore, (1960) see no reason to assume that tion of back due Grievant.” has the trust reverse the district court’s order to the this arbitrator abused we stayed in him and has not imposes monetary judg- parties confided extent marked out for his consid ment and direct the within areas apparent It that he dispute regard- court to eration. is not went district remand the submission.”); ing appropriate beyond to Retail Store amount of back Wheel, Employees Union Local 782 v. Sav-On Enterprise arbitrator. See Groceries, (10th (remand F.2d 502-03 Cir. to U.S. at S.Ct. at 1362 Cir.1983) (the to (1st question submitted (the 1975) not sub- backpay issue of was Company violate “Did the to and thus arbi- the arbitrator: mitted the arbitrator placing insofar as Richard Grant tration award was null and void the contract issue). so, be applied it that If shall job.... to laborer's what remedy?” empower the arbitra- did not full limit submission text and pay remedy to provide to a back tor the Labor Company is: “Did the violate journeyman employee, except the senior Agreement it failed recall Grievant when status; the court refused layoff layoff May Sandra Cortez from on ex- which enforce so, If to what relief is Grievant 1984? authority in the sub- conferred ceeded suggest credibility to entitled?” It strains em- by awarding pay to two mission vague that in this submission is context say I with ployees). can confidence object insofar as is the of the remedies who not draw the arbitrator’s award does sought. being majority interprets this “Essence” essence from the submission. company submission if it reads: “If as [the much, the odor re- does not take but whatever agreement], to the labor what violates award, it this is not essence. entitled arbitration lief is Grievant [from Union]?” decision on court’s entire is bottomed agree point, respectfully this and I cannot liability it. I is not one union believe

of the issues submitted to the arbitrator. imply

I would that an arbitration not

submission, clearly framed in terms of em- breach, ployer’s to make the modified re In CIRCLE ENERGY MAGIC pur- remedies union defendant for CORPORATION, Debtor. poses merely because does not my exclude the union from remedies. 1981-A MAGIC CIRCLE ENERGY judgment, clearly an of lan- it is abuse PROGRAM; Magic Circle DRILLING guage and content to so construe a submis- Energy Equipment 1982-83 Oil Gas scope which sion restricts Energy Magic Partnership; Circle authority, as well as contract itself. Program; Magic Drilling 1981-B Circle particularly This is true where the effect is Drilling Energy Private Pro 1982-83 prevent put fair notice the union gram; Drilling Program; Olympia 1980 person repre- in clear it is conflict with Magic Energy Drilling Circle senting. probably would not hold that I Program, Petitioners-Appellants/Cross submission, deliberately and ex- such Appellees, into, illegal pressly would entered public However, against policy. clearly I LINDSEY, approve implying an arbitrator B. Bank would Paul United States against ruptcy Judge, such a submission the clear context Western District language, requiring of the submission thus Oklahoma, Respondent-Appellee. union itself its client to defend N.A., Fargo Bank, Wells give requiring at it to while the same time Creditor-Appellee/Cross Although representation. that client fair Appellant. princi- factually distinguishable, I find the ples of Local 1837 v. Maine Public Service 87-2626, 88-1075. Nos. (D.Me.1984)(the Co., ques- F.Supp. Appeals, Court of United States tion submitted to the arbitrator: “[W]hat Tenth Circuit. remedy?” empower did not shall be the disregard the collective bar- arbitrator to Nov. remedy), gaining fashioning a clearly supportive of these views. See

also, Courier-Citizen Boston Electro-

typers No. 281-82

Case Details

Case Name: United Food and Commercial Workers, Local Union No. 7r v. Safeway Stores, Inc., and Sandra Cortez, Rule 19(a)(2)

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Nov 17, 1989

Citation: 889 F.2d 940

Docket Number: 87-2547

Court Abbreviation: 10th Cir.