The opinion of the court was delivered by: HANNUM
This is an action to vacate an Arbitration Award. Jurisdiction is based upon Section 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, June 23, 1947, 29 U.S.C. § 185. Plaintiff specifically asks this Court to order a new arbitration hearing.
The defendant Carolina Freight Carriers Corp. (hereinafter called "Carolina") and Local 107 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (hereinafter called "Local 107") regularly entered into collective bargaining agreements covering terms and conditions of employment. Plaintiff, Donald Sharpe, was discharged by Carolina on April 15, 1970. This action was taken pursuant to Article 45, "Discharge or Suspension", of the governing collective bargaining Agreement. The basis for the discharge was plaintiff's alleged involvement in the theft of an interstate shipment from Carolina's Terminal. On April 23, 1970, the plaintiff was given a hearing to determine whether probable cause existed in a criminal complaint charging violations of 18 U.S.C. § 659. The Honorable Tullio G. Leomporra
held that there was no probable cause to hold the plaintiff on the above mentioned charge. Pursuant to the grievance machinery of the contract between the defendants a hearing was held before the Philadelphia, Pennsylvania, and Vicinity Joint Area Committee on May 7, 1970, at which time the panel was unable to make a decision on the discharge of plaintiff and the matter was referred to Arbitrator William Loucks. On July 11, 1970 the Arbitrator rendered his decision which stated in part:
"The discharge of Donald Sharpe for proven dishonesty under the provisions of Article 43, Discharge or Suspension, Section 1, Paragraph (3), of the Agreement is hereby sustained as in compliance with the provisions of that Agreement."
Plaintiff's claim that the arbitrator's award is illegal and beyond the scope of his authority for the following reasons:
1. The joint area committee submitted to the arbitrator the question of whether plaintiff had been discharged for "just cause." The arbitrator rendered his decision not on the question of whether or not the discharge was for "just cause," but rather on the question of whether "proven dishonesty" had been found. Accordingly, the arbitrator did not answer the question submitted to him;
2. The decision of the arbitrator was not based on any testimony substantiating the allegation of "proven dishonesty" or "proven theft" beyond a reasonable doubt, but rather, in the words of the arbitrator himself, on ". . . Mr. Sharpe's own personal attitudes and behavior in the arbitration hearing";
3. Plaintiff was discharged on a Federal Complaint, charging him with a violation of Title 18, U.S.C. Sec. 659 which requires the same element of knowledge as "proven dishonesty";
4. There is no evidence in the record or otherwise, that the arbitrator was selected pursuant to the provisions of Article 44, Section 4, paragraph c, requiring a panel of ten names who are available to act as arbitrators;
5. Plaintiff was denied permission to have the attorney of his choice present and speaking in his behalf at the joint area meeting, and at the hearing before the arbitrator in violation of his constitutional rights.
Defendant, Carolina, has moved for an Order dismissing the action as to it because the Complaint fails to state a claim upon which relief can be granted or, in the alternative, for summary judgment. Carolina claims that both the Federal Arbitration Act (9 U.S.C. § 12) and the Pennsylvania Arbitration Act (5 P.S. § 173) require that an action to vacate an award must be initiated within three (3) months after the award is filed or delivered. The award under attack here was issued on July 11, 1970, and delivered immediately thereafter. This action to vacate the award was not commenced until more than nine (9) months later, on March 22, 1971.
The Court does not reach the question of whether the state or federal arbitration act would bar the relief requested by plaintiff.
Summary Judgment is appropriate at this time.
The applicable sections of the collective bargaining agreement are as follows:
"ARTICLE 44 -- GRIEVANCE MACHINERY
The Union and the Employers agree that there shall be no strike, lockout, tie-up or legal proceedings without first using all possible means of a settlement as provided for in this ...