Beruflich Dokumente
Kultur Dokumente
Paul F. Kelly, with whom Anne R. Sills and Segal, Roitman &
_____________
_____________
________________
Coleman were on brief for appellant.
_______
John D. O'Reilly III, with whom O'Reilly & Grosso was on
_____________________
__________________
brief for appellees.
____________________
July 19, 1994
____________________
____________________
*
Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion.
The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C.
46(d).
courts reviewing
The circumscribed
arbitration awards
As the
in labor
role of
contract
United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36________________________________
___________
45 (1987), courts must resist the temptation
own
judgment about
the
of the
most
reasonable
to substitute their
meaning
of
labor
the tendency
to
Instead,
courts
must
confine
themselves
to
collective bargaining
ruling
in
dispute
agreement
over
Plaintiffs-appellees, J.M.
(the
"plaintiffs"
arbitration
or
fringe
benefit
"Cashman
order,
supports an
which
and
favored
contributions.
Zoppo"),
the
arbitrator's
challenged
the
defendant-appellant,
Chauffeurs, Warehousemen
The
remanded
the
case.
outside
district court
Because
of
its
we find
highly
vacated the
arbitration award
arbitrator for a
that
role
of
the
Nevertheless,
parties,
we agree
we
reverse
with the
new resolution of
the district
circumscribed
the
district
and
court
stepped
assessing
the
of the agreement
court's
holding.
court that
the case
-2-
should
BACKGROUND
I.
This case arises
between the Union and
plaintiffs
out of the
Zoppo, involved
treatment facilities
Harbor Project").
arbitration of a
dispute
Cashman and
waste water
BACKGROUND
On
in the
construction of
in Boston Harbor
(the "Boston
filed grievances
their
own
receive certain
were
on the
trucks,
Project
Union
The
on behalf
grievances
Labor Agreement
and
welfare
of other
other employees
must also
the
Agreement"),
that the
pension
and
should
Boston
asserted that
required
and all
who owned
called "owner-operators,"
("Project
the employers,
contributions
behalf of
so
already paying
employees.
Harbor Project
Boston
signed by
same
the
"health and
contributions"
be made on
Harbor
made on
behalf of
the
owner-operators.
The employers
claimed that
they did
not have
to pay
Union and
many
such
owner-operator
years.
benefits
going
back at
least
twenty-six
number of
state
construction projects
themselves)
operator
agreed
truck
that, to
drivers
on
the
Project
including
the
would
(not
extent
be
present
Agreement in
Project, who
order to
established
any
to
with the
individual
required to
bid initially
on the
continue
as
Union before
sign the
work, see
___
that they
in
expected this
previous
owner-
were
practice
on
of
Zoppo
(1st
a nucleus
Boston Harbor
Cashman and
the Boston
projects.
a contractual
Harbor Project.
ordered the
plaintiffs
and
the
contributions on
behalf
of
other employers
and to pay
the
the Union
to
pay,
future fringe
owner-operator
truck
drivers.
that
certain provisions
Construction
of the
Agreement
Massachusetts Teamsters'
("Teamsters
Agreement"),
Heavy
which
was
make
-4-
health
insurance
and pension
contributions
on
behalf of
the
owner-operators in question.
At
that
issue in
the past
this appeal
practice of
is the
not paying
arbitrator's finding
the fringe
benefits for
owner-operators did not bind the parties in this case because the
the preamble
understandings
not
explicitly
set
forth
within
the
Project
Agreement,
the
arbitrator disregarded
the
employers
of
voluminous evidence
presented
by
practice
of
excluding
As
a result,
the language
of the
the
the
established
such
the
U.S.C.
behalf.
appeal is
owner-operator
contractors or
Section 302
issue on
employees.
of the Labor
186,
truck
If they
related question
drivers
are
of
independent
The arbitrator
the
acknowledged
("LMRA"), 29
benefit payments
that
on their
the employers
had
made no explicit
legal or
-5-
the employers'
award favoring
contention was
While a
implicit in
rejection
the arbitrator's
the
the court
district
court
held
that
the
On
summary
arbitrator
had
practices, thereby
failing to
duly consider
the evidence
that the parties had a practice of not paying fringe benefits for
owner-operators.
The
practices provision
district
of the
court
found
that
preamble -- particularly
the
past
the words,
--
clearly
and
unambiguously
mean that
between parties A
Agreement.
be
established
bind outside
Consequently, the
bound by
the
arbitrator to
even those
the past
that
interpreted to
still
meant
court held
practice
of not
owner-operators.
arbitrator's award
and
could
requiring fringe
The district
remanded the
case
court
to the
also left
in light
be
of
the court's
considered,
contractors,
for the
the
thus rendering
arbitrator the
holding that
owner-operators
the
payment of
issue of
past practices
are
independent
benefits on
their
behalf illegal.
II.
II.
labor
ANALYSIS
ANALYSIS
A.
A.
Standard Of Review
Standard Of Review
__________________
It
is well
arbitral
federal court
decisions, particularly
interpretation,
deferential."
established that
is
extremely
narrow
on matters
and
review of
of contract
"extraordinarily
de la Industria Gastron mica Local 610, 959 F.2d 2, 3-4 (1st Cir.
______________________________________
1992);
see,
___
e.g.,
____
Misco,
_____
484 U.S.
at
36-45
(1987); Berklee
_______
The
determination of the
supplant the
a contract dispute,
to be erroneous.
denied, 493
______
arbitrator's
even if
Rather, the
it
court's
United Steelworkers
of America
v. Enterprise
Wheel
& Car
_______________________________
Corp.,
_____
decision concerns
________________________
as the arbitrator's
no business
overruling him
of the
contract is
different from
Inc.
____
on
an
arbitrator's
bargaining agreement if it
the agreement,
interpretation
collective
corners of
for that
of
interpretation.");
as
the
authority, that
the arbitrator
contract
and
even arguably
within
a court is convinced he
the
Cir. 1982).
construing
scope
of
or
his
Misco, 484
_____
U.S. at
38.
Only in
able
to vacate
exceeded
a few,
exceptional
an arbitration
his authority
by
essence
484
court
ignoring the
When an
arbitrator has
clear and
of the contract or by
U.S. at
from
the
can overturn
38 (an
contract
award.
courts
unambiguous
construing the
rational, a
Misco,
_____
circumstances are
F.2d at 4;
the arbitrator's
arbitrator's
and
cannot
award "must
simply
judgment.
draw its
reflect
the
Ct. 3036
900 F.2d 423, 426 (1st Cir. 1990); Georgia-Pacific Corp. v. Local
_____________________
_____
27, United Paperworkers Int'l Union, 864 F.2d 940, 944 (1st Cir.
____________________________________
-8-
1988).
vacation of an
on an
the interpretation of
the district
to
arbitrator's
e.g.,
____
court.
standards
application of
of the contract,
228 (4th
court
matter of
in the contract.
described above,
the contract
not to
The district
the
deference is
according
F.2d
of
whether
was plausible.
the
See,
___
Cir. 1991);
District 2 Marine Engs. Beneficial Ass'n, 889 F.2d 599, 602 (5th
_________________________________________
Cir.
858
1989), cert. denied, 498 U.S. 853 (1990); see also Berklee,
____ ______
________ _______
F.2d
at
32-34
(vacating
arbitrator's interpretation
district
court's
of labor contract
reversal
of
without affording
court's
that
finding
arbitrator
in vacating district
erroneously
interpreted
circumscribed
standard
for
reviewing
arbitration awards in
mind, there
is little
question that
the
-9-
to the extent
-- must
This
be upheld
result
as a
is compelled
plausible reading
because the
of the
arbitrator's
this case.
Thus,
his authority
slate clean
facts of
slate clean
between the
Union and
by wiping
the plaintiffs
in this
particular case.
The
district court
apparently failed to
privy to
the past
practice
consider the
owner-
According to the
district
court,
provision
the
in the
plain
language
preamble provides
of
the
past
merely that
practices
past practices
although
themselves.
they
will
Applying
continue
to
be
this interpretation
binding
on
to the
A and
present case
reveals that fringe benefit practices between the Union and other
employer-contractors (parties
are not
binding on the plaintiffs (both party "C's"), who did not have an
established
parties"
past practice with the Union and are thus "any other
under
the past
practices clause.
As a
result, the
-10-
contract
could be
evidence of
read
to
require
the arbitrator
the Union and
to
ignore
other parties
the
Union
and
the
plaintiffs.
Because
such
of the arbitration
an
district
to the
an application of
They argue
to the practice
in
any way
be
bound
of not
the Union
by
such a
practice.
the clause
our purposes, it
determine
whether
the
is also irrelevant.
arbitrator
exceeded
Our task
his
authority
past practices
clause to
of the contract.
bar consideration
is to
by
seek
Interpreting
of plaintiffs'
The
-11-
clause
can be
read to preclude
application of
all established
the
several plausible
Such
a reading
constructions of
stems from
the language in
one of
the clause:
parties
not
A and
C;
(2) practices
binding
on party
are
entitled to rely on
binding on
or benefit from a
itself); and
(3) no
practice which is
practice shall
be binding
of excluding fringe
between
the Union
benefits for
and
other
contractors, is
could find
that plaintiffs
owner-operators,
Alternatively, the
cannot benefit
not
from the
plaintiff is an
"any
retroactively
award.
interpretation
arbitrator
instead,
protest
They
of the
did not
point out
past practices
an
cannot
now
otherwise
that
clause is
that interpretation
-12-
the Union's
plausible, the
himself, but
ignored the
employ such
unsustainable
even if
interpretation that
contract.
we
salvage an
arrive at
arrived at
language of the
that
that the
plain
past
practices between
all
parties, not
discussed
just
above.
The
plaintiffs argue,
contract
case
practices between
on
arbitration
the
basis
parties
award
of an
A and
cannot
be
as
upheld,
interpretation
of
the
at least,
conclusion
as
the arbitrator
to
considered if
whether
might have
past
come to
practice
a different
evidence
could
be
court's interpretation of
see
no
problem with
upholding
or her
reasons for
an
award.
or remand
for clarification,
arbitrator's
by the arbitrator
the
v. Automated
_________
Once an arbitrator
only when
"the
award,
reasons that
are
___
given strongly imply that the arbitrator may have exceeded his or
her authority."
(7th
951
Randall v.
_______
648 F.2d
462, 468
591,
594
(4th
Cir.
1991)
it may have
(remanding
portion
been based on a
of
grant of
draw its
implication
authority,
essence from
that
an
the contract).
arbitrator
F.2d
case the
exceeded
Absent
his
to have based
or
her
his or her
(7th
Cir. 1987);
see also
_________
-13-
Pressman's Union, 821 F.2d 390, 394-95 (7th Cir. 1987) ("'[i]t is
________________
only when the arbitrator must
____
of thought,
contract
essence
. .
or feeling, or
. that
from the
the award
can be
collective bargaining
that is outside
said not
to
body
the
'draw its
agreement.''") (quoting
(7th Cir.
this
case,
despite
the
arbitrator's
allegedly
exceeded his
authority by
the contract."
Misco, 484
_____
U.S. at 38;
or applying
Auto Truck Drivers & Helpers, Local 162 v. Mitchell Bros. Truck
________________________________________
_____________________
Lines,
_____
(9th Cir.
"doing
interpretation of the
precluding
the
plaintiffs'
use of
past
obligations
interpretation of
upheld.
El Dorado,
__________
961
practice
under
plausible
arbitrator's
not
F.2d at
"wipe-the-slate-clean"
if he had
evidence in
319.
did
fact
construction
of
is
must be
____
that the
the
past
not
Agreement
The
as
determining
as such,
exceed
-14-
his
to other parties
arbitrator
The arbitrator's
Project
exceeded
the
the
arbitrator for
in the preamble
1982) (upholding
Rather, we know
authority
because
his
its
essence
Therefore, we
resolved
from
the
collective
this
case
had
he
bargaining
agreement.
might have
considered
the
district
court's
Unlike
issue
the
dispute
of whether fringe
over the
Project
Agreement, the
benefit contributions on
behalf of the
type
of
circumscribed
judicial
review
that
we
afford
a contract.
may deserve
illegality is
a certain
amount of
criminal
deference, the
consequences, the
issue of
plaintiffs deserve
Misco,
_____
302 could
a thorough
of
than employees.
issue was properly decided by the arbitrator and, if not, how the
issue
should now
be resolved.
The
plaintiffs argue
court,
should
find
that
the
that the
owner-operators
are
-15-
nullifying the
arbitration
the
Union.
302 issue
However,
conducted
required
the
purposes
651
we
did,
at
the
by granting
are
appropriate
very
least, implicitly
an award
not satisfied
that
statutory analysis
factual determination
Distinguishing
law.
arbitrator
of the
in favor
the
for
of the
arbitrator
making
the
owner-operator's status.
60 (1st
Cir. 1981).
Courts
have spelled
out a
party's status,
"right
including various
indicia of
the employer's
Amber,
_____
651 F.2d at 61; Construction, Bldg. Material, etc., Local No. 221
_________________________________________________
to determining an
aspects of
employer's "right to
the agency
test, no
control" or to
one factor
1983),
(D.C. Cir.
is decisive.
(citing
Rather,
all of
the incidents
of the
relationship between
the
Amber, 651
_____
F.2d at 61.
Given
practices issue
the arbitrator's
and on provisions
exclusive
focus on
of the contract
the
past
dealing with
fringe
benefit contributions,
we have
serious doubts
There is no
suggest, that
that the
the arbitrator's
decision regarding
the past
test
discussion
of
302.
the
and
the
the
arbitrator's
import
of past
to the
the owner-operators
convince
Consequently,
Project Agreement
practices concerning
parties'
302
us that
undertaken.
We
in this
a
complete
cannot,
case, is
302
not itself
agency test
therefore, defer
to the
sufficient to
analysis
was
arbitrator's
until a
more complete
302 analysis
is
conducted.
We are not prepared,
reexamine
the factual
circumstances of
-17-
this case.
Plaintiffs
asserted
in
their action
arbitration award
law.
the
the district
is unenforceable
practices.
before
because it
declined to review
the arbitration
Because we now
court
that the
violates federal
award on
the issue
of past
ruling,
be properly adjudicated.
turn, we are
making
of
In
not disposed
explicit factual
findings
from the
district
arbitrator, that
owner-operators'
status.
record exists in
302 issue if we
Although
court or
the
determination of the
largely
uncontradicted
to resolve the
toward
fact-intensive determination.
involved
federal judicial
not in
a suitable position
as a
federal
to conduct
that
review.
Unfortunately,
the
district
court
is
in
the
same
Consequently,
the district
we decline
court for a
to remand
resolution of
the case
the
302
do so.
Although federal
courts have
-18-
duty to
scrutinize such
consequences,
the
arbitrator
providing
first-hand factual
reviewing
court.
arbitrator for
we
the
important
for the
remand
separate determination
benefit of
this
of the
role
case
in
the
to
the
status of
the
302.
The plaintiffs
to
play an
findings
Therefore,
owner-operators under
actions
can
potential criminal
arbitrator;
however,
authority to remand
they
claim
it
is
On the contrary, it
U.S.
See
___
20, 26
Gilmer
______
(1991);
v.
Interstate/Johnson Lane
________________________
Page v.
____
be decided
Moseley, Hallgarten,
_____________________
We
see no reason why the arbitrator cannot make the factual findings
necessary
the
to resolve the
status
of
302
owner-operators
particularly
Determining
within
the
arbitrator's domain
of
the
working
determination
issues
since it involves
relationship
between
involves consideration
that
the parties
parties.
of precisely
originally
agreed
to
Such
the
refer
type of
to
the
do, nevertheless,
retain jurisdiction
so that
the district
of the arbitrator,
if
On remand,
appropriate
caselaw.
899 F.2d
we expect
agency test
See, e.g.,
___ ____
at 1240;
analysis as
Amber,
_____
described in
220 (1957).
what effect, if
We leave it
any, the
and
the
evidence
treatment
of owner-operators
of
has
the relevant
F.2d at
to the arbitrator
past
599-600;
Restatement (Second) of
Agreement
conduct the
practice
on his
of the
to decide
Project
regarding
the
determination of
the
owner-operators' status
arbitrator's
consideration
disputes,
in
under
302.
interpretation
of
past
of
practices
Although
we upheld
the
the
contract
as
barring
in
resolving
contractual
the various
evidence of past
factors enumerated
under the
test used
to
302.
-20-