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August 7, 1974

United Mine Workers of America, District No. 5, et al., Plaintiffs
Pennweir Construction Company, Defendant

Weber, D.J.

The opinion of the court was delivered by: WEBER

This is an action to enforce an arbitration award of an Umpire rendered pursuant to the grievance procedure of the National Bituminous Coal Wage Agreement of 1971. Plaintiffs are a District and Local Union of the United Mine Workers of America, the recognized exclusive bargaining agent of Defendant's employees. The matter comes before the court on cross-motions of the parties for Summary Judgment.

 There is no dispute as to the underlying facts of this case. On May 3, 1973, the Defendant Company hired one Parko as a bulldozer operator. On May 24, 1973, Parko experienced difficulty in handling the bulldozer and was discharged by his supervisor. In discharging the employee the Company did not follow the provisions of Art. XVIII Discharge Procedure of the Collective Bargaining Agreement. The discharge was the subject of a grievance filed by the Plaintiff Unions under the Collective Bargaining Agreement, Art. XVII Settlement of Disputes and was ultimately referred to an arbitrator selected by the parties to make a final determination. The arbitrator sustained the grievance and ordered that Parko be reinstated with all contract rights and benefits from May 24, 1973 until the date of reinstatement, less any sums earned by him in the meantime. The Defendant Company has reinstated Parko but refuses to pay back pay. The arbitrator's decision is reported in 73-1 ARB P 8227.

 The arbitrator determined three questions in the course of his deliberations. He found that Parko was not a probationary employee which would make him subject to discharge at the will of the Company, and that any agreement entered into between the Local Union and the grievant or employer providing for probationary employees was invalid. Second, the arbitrator found that the grievant was not discharged for just cause. Thirdly, the arbitrator found that the defendant Company had not followed the procedural requirements of the Collective Bargaining Agreement.

 If the argument of the Defendant Company is accepted it is immaterial whether or not the employee was dismissed for just cause or whether the procedural requirements for dismissal in the contract were followed. It is the contention of the Defendant Company that the employee was a "probationary employee" who could be dismissed summarily and without cause during the first thirty days of his employment with the Company. The arbitrator decided the question of "probationary employee" adversely to the Company.

 It is the contention of the Defendant that the arbitrator's finding with respect to the claim of defendant of a thirty day probationary period of employment was invalid and drew no support from the contract which he was construing. The Defendant relies on the statement of the Supreme Court in United Steel Workers v. Enterprise Wheel & Car Corp., 363 U.S. 593 [1960], at p. 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424:

". . . his award is legitimate only so long as it draws it essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award."

 The Court of Appeals for this Circuit has in Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 [3d Cir. Pa. 1969], and in Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125 [3d Cir. Pa. 1972] emphasized that an arbitrator's award does not draw its essence from the agreement the agreement if the arbitrator's interpretation cannot be rationally derived therefrom. These two cases establish the rule that an arbitrator's award may not stand if it does not meet the test of fundamental rationality.

 The Defendant cites Art. XIX Sec. (b) as supporting its argument that the employee involved here was a "probationary employee", not covered by the discharge procedures of the collective bargaining agreement, because of the exception for prior practice and custom:

". . . local agreements, rules, regulations and customs heretofore established in conflict with this agreement are hereby abolished. Prior practice and custom not in conflict with this agreement may be continued . . . Whenever a conflict arises between this agreement and any district of local agreement, this agreement shall prevail."

 Defendant Company contends that this provision in the collective bargaining agreement sanctioned its long-standing probationary period practice. The arbitrator considered the contention of the Defendant Company and found that it was quite likely that there was such a local agreement by reason of the fact that the grievant admitted that he was hired as a probationer at all times during the hearing, and the local officers were not called to refute the existence of this agreement. The purport of the local agreement was to the effect that all new employees are to be considered as probationary employees for a period of thirty days after their employment and may be discharged without cause and without notice during this period. The Defendant Company asserts that this agreement had been in effect for more than twenty years.

 The Defendant attacks the rationale of the arbitrator in rejecting the contention of the Defendant Company. At one point in his Opinion the arbitrator reasoned that the past practice custom referred to in Art. XIX could only be used to interpret an ambiguous provision of the agreement, it had no independent significance apart from explaining the written language of the contract. He further reasoned that because the collective bargaining agreement contains absolutely no reference to a probationary employee, therefore, evidence of past practices or local agreement would not be considered.

 We are not concerned with the rationale by which the arbitrator reached his decision.

" mere error in the law or failure on the part of the arbitrators to ...

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