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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________
No. 93-2122
LABOR RELATIONS DIVISION OF CONSTRUCTION
INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,
Plaintiffs-Appellees,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL #379,
Defendant-Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Torruella, Circuit Judge.
_____________
_____________________

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).

TORRUELLA, Circuit Judge.


______________
federal

courts reviewing

The circumscribed

arbitration awards

disputes is now well established.

As the

in labor

role of

contract

Supreme Court found in

United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36________________________________
___________
45 (1987), courts must resist the temptation
own

judgment about

contract for that

the
of the

most

reasonable

to substitute their
meaning

arbitrator and avoid

of

labor

the tendency

to

strike down even an arbitrator's erroneous interpretation of such


contracts.

Instead,

courts

must

confine

themselves

to

determining whether the arbitrator's construction of the contract

was in any way plausible.

The issue in this case is whether any plausible reading


of a

collective bargaining

ruling

in

dispute

agreement

over

Plaintiffs-appellees, J.M.
(the

"plaintiffs"

arbitration

or

fringe

benefit

Cashman, Inc. and R.

"Cashman

order,

supports an

which

and

favored

International Brotherhood of Teamsters,

contributions.

Zoppo Co., Inc.

Zoppo"),
the

arbitrator's

challenged

the

defendant-appellant,

Chauffeurs, Warehousemen

and Helpers of American, Local 379 (the "Union"), in the district


court.

The

remanded
the

the dispute to the

case.

outside

district court

Because

of

its

we find

highly

vacated the

arbitration award

arbitrator for a
that

role

of

plausibility of the arbitrator's interpretation


between

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

be remanded to the arbitrator for resolution of a related

issue of federal law.


I.

BACKGROUND

I.
This case arises
between the Union and
plaintiffs

out of the

Zoppo, involved

treatment facilities

Harbor Project").

arbitration of a

dispute

a group of contractor-employers, including

Cashman and

waste water

BACKGROUND

On

in the

construction of

in Boston Harbor

March 2, 1992, the Union

(the "Boston

filed grievances

against Cashman, Zoppo, and six other project employers, claiming


that truck drivers
drove

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

that the employers

Boston

asserted that

required

and all

who owned

called "owner-operators,"

("Project

the employers,

contributions

behalf of

so

fringe benefit contributions

already paying

employees.

Boston Harbor Project

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

fringe benefits on behalf of owner-operators because the contract


did not require it

and, more importantly, because the

Union and

many

of the employers had a long-standing practice of not paying

such

owner-operator

years.

benefits

going

back at

least

twenty-six

According to the employers, this practice was established

after the Union

and certain employer-contractors on a


-3-

number of

state

construction projects

themselves)
operator

agreed

truck

that, to

drivers

on

the

Project

including

the

would

construction project, the


fringe benefits

(not

extent

be

present

Agreement in

Project, who
order to

Contractors, Inc., 113 S. Ct.


__________________
Cir. 1991)

established

any

to

with the

individual

required to

bid initially

on the

1190 (1993), rev'g,


_____

continue

as

Union before

Consequently, no past practices

sign the

work, see
___

Associated Builders &


_______________________

that they
in

935 F.2d 345

expected this

previous

Cashman and Zoppo, however, had never entered into


relationship

owner-

The employers working

were

(en banc), maintained

practice

on

of

Zoppo

employers would not be required to pay

Building & Constr. Trades Council v.


_____________________________________

(1st

a nucleus

for the owner-operators.

Boston Harbor

Cashman and

the Boston

projects.

a contractual

Harbor Project.

had been established between the

Union and the plaintiffs themselves.

Pursuant to the Project Agreement, the dispute over the


fringe benefits was brought
On January 20, 1993, the
and

ordered the

before an arbitrator for resolution.

arbitrator found in favor of

plaintiffs

and

the

retroactively, post-grievance benefits


benefit

contributions on

behalf

of

other employers
and to pay
the

the Union
to

pay,

future fringe

owner-operator

truck

drivers.
that

In his accompanying opinion,

certain provisions

Construction

of the

Agreement

Massachusetts Teamsters'

("Teamsters

incorporated into the Project

the arbitrator explained

Agreement"),

Heavy

which

was

Agreement, in conjunction with the

Project Agreement itself, explicitly obligated employers to

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

Project Agreement "wiped the slate clean" of such past practices.


The arbitrator relied on

the following language in

the preamble

of the Project Agreement to support his finding:


No practice, understanding or agreement
between a Contractor and a Union party
which is not explicitly set forth in this
Agreement shall be binding on any other
party unless endorsed in writing by the
Project Contractor.
By

interpreting this language as negating all past practices and

understandings

not

explicitly

set

forth

within

the

Project

Agreement,

the

arbitrator disregarded
the

employers

of

voluminous evidence

presented

by

practice

of

excluding

owner-operators from fringe benefit contributions.

As

a result,

the language

of the

the

the

established

Project Agreement granting

such

benefits was found to be controlling.


Also at
whether

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

are independent contractors,

Management Relations Act

would prohibit fringe

The arbitrator

the

acknowledged

("LMRA"), 29

benefit payments
that

on their

the employers

had

argued that fringe benefit payments for the owner-operators would


be illegal under

Section 302, but he

made no explicit

legal or

-5-

factual findings on the issue in his opinion.


of

the employers'

award favoring

contention was

While a

implicit in

the Union, nothing indicates

rejection

the arbitrator's

that the arbitrator

actually determined whether the owner-operators were employees or


independent contractors for purposes of the LMRA.
Following

the entry of the arbitrator's award, Cashman

and Zoppo filed a complaint in the district court on February 19,

1993, requesting that


judgment,

the

the court

district

vacate the award.

court

held

that

the

On

summary

arbitrator

had

impermissibly exceeded his authority by misapplying the plain and

unambiguous language of the Project Agreement preamble concerning


past

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,

"no practice . . . shall be binding on any other party" (emphasis


_______________
added)

--

clearly

and

unambiguously

practices between parties A and


party C.

mean that

between parties A
Agreement.
be

B are not meant to

established

bind outside

all established practices,

Consequently, the
bound by

the

arbitrator to

even those

and B, are completely wiped out by the Project

the past

benefit contributions for


vacated

that

The court found that the phrase could not reasonably be

interpreted to

still

meant

court held
practice

of not

owner-operators.

arbitrator's award

and

determine the merits,


-6-

that the Union

could

requiring fringe

The district

remanded the

case

court

to the

giving proper consideration

to the evidence of past practices.


The court
whether,
could

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

Dorado Beach Hotel Corp. v. Uni n de Trabajadores


________________________
______________________

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
_______

College of Music v. Berklee Chapter of Mass. Fed. of Teachers,


_________________
____________________________________________
Local 4412,
__________

858 F.2d 31, 32

U.S. 810 (1989).

The

determination of the

(1st Cir. 1988), cert.


____

court may not


merits of

finds that determination

supplant the

a contract dispute,

to be erroneous.

denied, 493
______

arbitrator's
even if

Rather, the

it

court's

task is limited to determining if the arbitrator's interpretation


of the contract is in any way plausible.
38;

United Steelworkers

of America

Misco, 484 U.S. at 36_____

v. Enterprise

Wheel

& Car

_______________________________
Corp.,
_____

363 U.S. 593, 599

decision concerns

________________________

(1960) ("[S]o far

as the arbitrator's

construction of the contract,

the courts have

no business

overruling him

because their interpretation

of the

contract is

different from

his."); El Dorado Technical Servs.,


____________________________
-7-

Inc.
____

v. Uni n General de Trabajadores de Puerto Rico, 961 F.2d


______________________________________________

317, 319 (1st Cir.


depends

on

an

1992) ("[A] court should uphold an award that

arbitrator's

bargaining agreement if it
the agreement,

interpretation

collective

can find, within the four

corners of

any plausible basis

for that

of

interpretation.");

Dorado Beach, 959 F.2d at 4; Bacard Corp. v. Congreso de Uniones


____________
_____________
___________________
Industriales de Puerto Rico,
___________________________
"[A]s long
applying

as
the

authority, that

the arbitrator
contract

and

692 F.2d 210, 211 (1st


is
acting

even arguably
within

a court is convinced he

does not suffice to

the

Cir. 1982).

construing
scope

of

or

his

committed serious error

overturn his decision."

Misco, 484
_____

U.S. at

38.
Only in
able

to vacate

exceeded

a few,

exceptional

an arbitration

his authority

by

mandates or plain language


contract
or

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

arbitrator's own notions of


959

award.

courts

unambiguous

construing the

in a way that cannot possibly be described as plausible

rational, a

Misco,
_____

circumstances are

F.2d at 4;

the arbitrator's

arbitrator's
and

cannot

award "must
simply

judgment.

draw its

reflect

the

industrial justice"); Dorado Beach,


_____________

Air Line Pilots Ass'n Int'l v. Aviation Assocs.


____________________________
________________

Inc., 955 F.2d 90, 93


____

(1st Cir.), cert. denied, 112 S.


____ ______

(1992); Strathmore Paper Co.


____________________

Ct. 3036

v. United Paperworkers Int'l Union,


_______________________________

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).

We reject plaintiffs' contention that our review of the


district court's

vacation of an

arbitration award, based

on an

alleged impermissible interpretation of a contract, is made under


the clearly erroneous standard.
due to

the arbitrator's interpretation

the interpretation of

the district

ruled that the arbitrator


law by ignoring
We

to

arbitrator's
e.g.,
____

court.

novo and make

standards

application of

Upshur Coals Corp. v.


__________________
225,

of the contract,

228 (4th

court

matter of

in the contract.

our own determination,

described above,
the contract

not to

The district

plain and unambiguous language

the

deference is

exceeded his authority as a

review this finding de

according

F.2d

In this case, all

of

whether

was plausible.

the

See,
___

United Mine Workers, Dist. 31, 933


______________________________

Cir. 1991);

Delta Queen Steamboat Co. v.


___________________________

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

deference to the district court's findings); Bacard , 692 F.2d at


_______
211-14 (implicitly

applying de novo review

court's

that

finding

arbitrator

in vacating district

erroneously

interpreted

collective bargaining agreement).


B.
B.
With

The Past Practices Clause


The Past Practices Clause
_________________________
this

circumscribed

standard

for

reviewing

arbitration awards in

mind, there

arbitrator's interpretation of the

is little

question that

the

Project Agreement -- at least

-9-

to the extent

that he found that the

past practices clause bars

consideration of the plaintiffs' evidence of prior fringe benefit


__________
arrangements
contract.

-- must
This

be upheld

result

as a

is compelled

plausible reading
because the

of the

arbitrator's

holding comports with the

district court's own interpretation of

the past practices clause

when properly applied to the

this case.

Thus,

even if the arbitrator exceeded

in finding that the


of

his authority

past practices clause wiped the

slate clean

all established practices between all parties, an issue we do

not decide, he certainly


the

facts of

slate clean

did not exceed his authority

between the

Union and

by wiping

the plaintiffs

in this

particular case.
The

district court

apparently failed to

possibility that plaintiffs in this case are


therefore not
operators

privy to

the past

practice

consider the

"other parties" and


of excluding

from the payment of fringe benefits.

owner-

According to the

district

court,

provision

the

in the

plain

language

preamble provides

of

the

past

merely that

practices

past practices

established between parties A and B shall not be binding on party


C,

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

"A" and "B" respectively)

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

past practices between

the arbitrator
the Union and

to

ignore

other parties

when applying the provisions of the Project Agreement to disputes


between

the

Union

and

the

plaintiffs.

interpretation is a plausible one,


court's vacation

Because

such

we must reverse the

of the arbitration

an

district

ruling with respect

to the

arbitrator's construction of the Project Agreement.


The plaintiffs

take issue with such

the past practices clause to the

an application of

facts of this case.

They argue

that because the

Union itself was privy

to the practice

requiring fringe benefit payments for owner-operators,


can still be
plaintiffs

held to that practice, regardless


cannot

in

any way

be

bound

of not

the Union

of the fact that

by

such a

practice.

Plaintiffs point to the language of the clause, which states that

"[n]o practice . . . between a Contractor and a Union party . . .


shall be

binding on any other

party," to argue that

the clause

itself concerns only the effects of past practices on new parties


to the project agreement but in

no way limits the effect of past

practices on the Union itself.

The plaintiffs' interpretation is certainly reasonable,


but, for

our purposes, it

determine

whether

the

is also irrelevant.

arbitrator

exceeded

Our task
his

authority

failing to apply the contract in a plausible manner, not to


out the
the

most reasonable meaning

past practices

clause to

of the contract.
bar consideration

is to

by

seek

Interpreting

of plaintiffs'

evidence of past practice in this case is clearly plausible.

The

-11-

clause

can be

read to preclude

past practices to "any

application of

all established

other party," even if that practice is in

the

"other party's" favor.

several plausible

Such

a reading

constructions of

stems from

the language in

one of

the clause:

(1) no practice between parties A

and B shall be binding between

parties

not

A and

C;

(2) practices

binding

on party

are

likewise unavailable to C for use against parties A or B (i.e., C


is not
not

entitled to rely on

binding on

or benefit from a

itself); and

(3) no

practice which is

practice shall

be binding

unlessalreadyestablished betweenaUnion andaparticular contractor.


In this case, the
the practice
established

arbitrator could plausibly find that

of excluding fringe
between

the Union

benefits for
and

other

contractors, is

binding between the Union and the plaintiffs.


arbitrator

could find

past fringe benefit


other party"

that plaintiffs

owner-operators,

Alternatively, the

cannot benefit

practice because each

not

from the

plaintiff is an

"any

and thus could not be bound by the practice were it

beneficial to the Union instead of to the employer.


Plaintiffs
reasoning to
arbitration

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

The arbitrator found

the slate clean of all

employ such

unsustainable

even if

interpretation that

contract.

practices clause wiped

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

that the arbitrator did not even make, because, in this

at least,

conclusion

as

the arbitrator
to

considered if

whether

might have

past

come to

practice

he adopted the district

a different

evidence

could

be

court's interpretation of

the past practices clause at the time of his decision.


We
decision on
himself.
his

see

no

problem with

upholding

grounds or reasoning not employed

To begin with, an arbitrator

or her

reasons for

an

award.

or remand

for clarification,

arbitrator's

by the arbitrator

has no obligation to give


Raytheon Co.
____________

Business Sys., 882 F.2d 6, 8 (1st Cir. 1989).


_____________
chooses to provide such reasons,

the

v. Automated
_________

Once an arbitrator

courts should upset the

only when

"the

award,

reasons that

are
___

given strongly imply that the arbitrator may have exceeded his or
her authority."
(7th
951

Randall v.
_______

Lodge No. 1076,


______________

648 F.2d

462, 468

Cir. 1981); see also Cannelton Indus. v. District 17, UNWA,


________ _____________________________________
F.2d

591,

594

(4th

arbitration award because

Cir.

1991)

it may have

(remanding

portion

been based on a

of

grant of

punitive, as opposed to compensatory, damages, in which


award did not
strong

draw its

implication

authority,

essence from

that

an

the contract).

arbitrator

the arbitrator is presumed

award on proper grounds.


Press, Inc., 816
____________

F.2d

case the

exceeded

Absent
his

to have based

or

her

his or her

Saturday Evening Post Co. v. Rumbleseat


_________________________
__________
1191, 1197

(7th

Cir. 1987);

see also
_________

-13-

Chicago Newspaper Publishers' Ass'n v.


______________________________________

Chicago WEB Printing


______________________

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

have based his award on some


policy, or law

the award

can be

collective bargaining

that is outside

said not

to

body

the

'draw its

agreement.''") (quoting

Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 185


___________
____________________

(7th Cir.

1985)) (emphasis in original).


In

this

case,

despite

erroneous reasoning, there is

the

arbitrator's

allegedly

nothing to indicate the arbitrator

exceeded his

authority by

the contract."

not "arguably construing

Misco, 484
_____

U.S. at 38;

or applying

see General Teamsters,


___ ___________________

Auto Truck Drivers & Helpers, Local 162 v. Mitchell Bros. Truck
________________________________________
_____________________
Lines,
_____

682 F.2d 763

(9th Cir.

"doing

the right thing for the wrong reason").

interpretation of the
precluding

the

plaintiffs'

past practices clause

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

that the arbitrator exceeded his

applied that construction

not

Agreement

The

as

determining

as such,

exceed
-14-

his

to other parties

mean that he might have

his authority in this particular case.

arbitrator

The arbitrator's

Project

present in this litigation does not

exceeded
the

the

arbitrator for

in the preamble

the contract and

practices clause might indicate


authority

1982) (upholding

Rather, we know

authority

because

his

application of the past practice clause to the plaintiffs' claims


drew

its

essence

Therefore, we
resolved

from

the

collective

need not speculate

this

case

had

he

bargaining

agreement.

how the arbitrator

might have

considered

the

district

court's

construction of the contract language at issue.


C.
C.

Section 302 of the LMRA


Section 302 of the LMRA
_______________________

Unlike
issue

the

dispute

of whether fringe

over the

Project

Agreement, the

benefit contributions on

behalf of the

owner-operators is illegal under federal law does not involve the


same

type

of

circumscribed

judicial

review

that

arbitration decisions grounded in interpretations of


Although the

arbitrator's factual findings

we

afford

a contract.

regarding the status

of the owner-operators under Section 302 of the LMRA, 29 U.S.C.


186,

may deserve

illegality is

a certain

ultimately one for

484 U.S. at 42-43.


have

amount of

criminal

deference, the

federal court review.

Given that a determination under

consequences, the

issue of

plaintiffs deserve

Misco,
_____

302 could

a thorough

judicial review of an arbitrator's decision as to this issue.


Neither party disputes that the plaintiffs' payment

of

fringe benefits on behalf of the owner-operators is illegal under


302

if the owner-operators are

than employees.

independent contractors rather

The parties do disagree, however, on whether the

issue was properly decided by the arbitrator and, if not, how the
issue

should now

be resolved.

The

plaintiffs argue

arbitrator did not properly decide the issue and


district

court,

should

find

that

the

that the

that we, or the

owner-operators

are

-15-

independent contractors, effectively


award.

nullifying the

arbitration

The Union argues that the arbitrator correctly found that

the owner-operators were employees and that we should uphold this


finding.
The
decide

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.

between employees and independent contractors for

of the LMRA is governed by general principles of agency

National Labor Relations Bd. v. Amber Delivery Serv., Inc.,


____________________________
__________________________
F.2d 57,

60 (1st

Cir. 1981).

Courts

have spelled

out a

number of factors to be considered in making the determination of


a

party's status,

"right

including various

indicia of

the employer's

to control" certain aspects of that party's work.

Amber,
_____

651 F.2d at 61; Construction, Bldg. Material, etc., Local No. 221
_________________________________________________

v. National Labor Relations Bd., 899 F.2d 1238, 1240


_____________________________
1990); North Am. Van Lines, Inc.
_________________________
600 (D.C. Cir.

v. N.L.R.B., 869 F.2d 596, 599________

1989); H. Prang Trucking Co. v. Local Union No.


______________________
________________

469, 114 L.R.R.M. 3617 (D.N.J. 1983).


___
parties when they
relevant
other
Todd
____

Although the intent of the

entered into a contractual relationship may be

to determining an

aspects of

employer's "right to

the agency

test, no

control" or to

one factor

v. Benal Concrete Constr. Co, 710 F.2d


__________________________

1983),

(D.C. Cir.

is decisive.

581, 584 (9th Cir.

cert. denied, 465 U.S. 1022 (1984); Amber, 651 F.2d at 61


____ ______
_____
-16-

(citing

N.L.R.B. v. United Ins. Co, 390 U.S.


________
_______________

Rather,

all of

the incidents

employer and the alleged

of the

254, 258 (1968)).

relationship between

employee must be assessed.

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

arbitrator actually conducted a proper


in this case.
to

There is no

suggest, that

that the

302 agency test analysis

reason to believe, as the Union seems

the arbitrator's

decision regarding

the past

practices clause, which we uphold in this opinion, is dispositive


not only of the underlying contractual dispute, but of the
issue as well.
agency

test

discussion

Past practices are only one facet of the complete


under

of

302.

the

and

the

the

arbitrator's

import

the owner-operators, while relevant

of past

to the

intended working relationship and thus to the status of

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

implicit factual finding on the owner-operators' status to uphold


the arbitration award

until a

more complete

302 analysis

is

conducted.
We are not prepared,

however, to conduct that analysis

ourselves without first giving

the arbitrator the opportunity to

reexamine

the factual

circumstances of
-17-

this case.

Plaintiffs

asserted

in

their action

arbitration award
law.
the

the district

is unenforceable

The district court


court vacated

practices.

before

because it

declined to review

the arbitration

Because we now

court

that the

violates federal

this claim because

award on

the issue

of past

reverse the district court's

ruling,

we are left with plaintiffs'

302 allegations, which have yet to

be properly adjudicated.

turn, we are

making
of

In

not disposed

factual findings in the first instance, given the absence

explicit factual

findings

from the

district

arbitrator, that

are required for a proper

owner-operators'

status.

record exists in

this case that would allow us

302 issue if we

Although

court or

the

determination of the

largely

uncontradicted
to resolve the

needed to, we consider ourselves too far removed

from the dispute to properly


in this

toward

weigh the various factors

fact-intensive determination.

involved

In other words, we refuse

to uphold the arbitrator's finding because plaintiffs have raised


a claim meriting
appeals court, are

federal judicial
not in

review yet we,

a suitable position

as a

federal

to conduct

that

review.
Unfortunately,

the

district

court

is

in

the

same

position that we are in with respect to determining the status of


owner-operators.
directly to
issue.

Consequently,

the district

we decline

court for a

to remand

resolution of

the case
the

302

The district court itself chose to remand the proceedings

instead of deciding the merits of the case and we think it is the


court's prerogative to

do so.

Although federal

courts have

-18-

duty to

scrutinize such

consequences,

the

federal issues with

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

do not dispute our

arbitrator;

however,

authority to remand
they

claim

it

is

inappropriate to do so when the issue on remand is one of federal


law.

We disagree with their contention that it is inappropriate

for an arbitrator to apply federal statutes.

On the contrary, it

is well established that certain statutory claims may


through arbitration.
Corp., 500
_____

U.S.

See
___

20, 26

Gilmer
______

(1991);

v.

Interstate/Johnson Lane
________________________

Page v.
____

Estabrook & Weeden, Inc., 806 F.2d


________________________

be decided

Moseley, Hallgarten,
_____________________

291, 295 (1st Cir. 1986).

We

see no reason why the arbitrator cannot make the factual findings
necessary
the

to resolve the

status

of

302

owner-operators

issue in this case.


is

particularly

Determining
within

the

arbitrator's domain
of

the

working

determination
issues

since it involves

relationship

between

involves consideration

that

the parties

analyzing various aspects


the

parties.

of precisely

originally

agreed

to

Such

the
refer

type of
to

the

arbitrator under the arbitration clause of the Project Agreement.


We

do, nevertheless,

court can review

retain jurisdiction

the final determination

so that

the district

of the arbitrator,

if

requested to do so by one of the parties.


-19-

On remand,
appropriate
caselaw.
899 F.2d

we expect

agency test
See, e.g.,
___ ____

at 1240;

the arbitrator will

analysis as

Amber,
_____

described in

651 F.2d at 60-61;

North Am. Van Lines, 869


_____________________

Prang, 114 L.R.R.M. at 3617-19; see also


_____
________
Agency

220 (1957).

what effect, if

We leave it

any, the

and

the

evidence

treatment

of owner-operators

of
has

the relevant

Local No. 221,


_____________

F.2d at

to the arbitrator

past

599-600;

Restatement (Second) of

past practices clause

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

we express no opinion on how the past practices clause

the contract and the

the various

evidence of past

factors enumerated

under the

ascertain a party's status under

practices figure into


agency

test used

to

302.

Accordingly, we reverse the district court's judgment


_______________________________________________________

vacating the arbitration award and remand this case to the


_________________________________________________________________

district court with instructions to remand the case to the


_________________________________________________________________
arbitrator for further proceedings consistent with this opinion.
_______________________________________________________________

-20-

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