occasions and ultimately discharged accordingly. On the present motion, plaintiff assigns as factual error the arbitrator's findings that (1) Lucas had never informed company personnel that his request to be excused from overtime work stemmed from a gall bladder condition; (2) the company did not dispute the seriousness of his illness; and (3) by championing the overtime work cause he had deliberately precipitated his own dismissal.
The arbitrator was fully justified in finding that plaintiff failed to inform his employer that his on-going refusal to accept overtime assignments was based on matters of health. Martin Miller, the labor relations and hourly personnel supervisor at the plant in which plaintiff worked, testified that Lucas never said he could not work overtime because of his gall bladder, App. 38, 40-41. And plaintiff's own testimony, while supporting his position at one point, id. at 86-88, contradicts it at another, id. at 112-14.
Plaintiff's contention that the arbitrator erred in concluding that the company did not dispute the seriousness of his condition confuses the time of the arbitrator's hearing in 1974 with the time of plaintiff's discharge in 1972. The company's position was that when Lucas was fired in 1972 he had offered no physical reason for his refusal to work more than eight hours per day. At that time, then, the company did dispute the existence of any physical justification because, according to Miller, none had been suggested by Lucas. During the arbitrator's 1974 hearing, however, the company did not deny Lucas may have had a gall bladder problem. It was to the company's 1974 position rather than its 1972 evaluation of Lucas to which the arbitrator referred. Plaintiff's true 1972 condition actually was irrelevant to the arbitrator's award because the arbitrator found that his condition, whatever it may have been, had never been communicated to the company.
Finally, the determination that plaintiff's conduct in championing the overtime cause precipitated his own discharge is amply supported by the record. App. 37-38, 50, 105-07. Accordingly, I conclude there was no abuse of the arbitrator's fact finding function.
Plaintiff assigns as errors of law the arbitrator's holdings that (1) Lucas' application for severance pay constituted an effective waiver of all rights to reemployment and would have barred further proceedings even had the union pursued the matter; (2) prior arbitration proceedings showed there was no real hope of success in the grievance procedure; (3) the failure of the company's plant physician to testify in response to Lucas' subpoena was not prejudicial; (4) the arbitration ruling "shall not be interpreted . . . as a finding that this decision lacks precedential value in the dispute of the grievant with the Union."
At the outset, I am constrained to state that I fully concur in the arbitrator's determination that prior, similar arbitration proceedings all but foreclosed any hope of success on Lucas' part.
Plaintiff contends, however, that the arbitrator's conclusion that Lucas' application for and acceptance of severance pay constituted an effective waiver of any right to reemployment is contrary both to my earlier opinion in this case and to the decision of the court of appeals in Hackett v. McGuire Brothers, Inc., 445 F.2d 442 (3d Cir. 1971). On both scores I disagree. Quoting a portion of a sentence out of context, plaintiff misreads my earlier opinion to include the effect of his acceptance of severance pay among the disputed material issues of fact rendering summary judgment for the union inappropriate. Read in its entirety, however, the sentence makes plain that the controverted question for the factfinder's determination was not the consequences of Lucas' accepting severance pay, but rather whether he had been accurately advised of the ramifications of that action. See 380 F. Supp. at 154. Indeed, the statement assumed implicitly, and in so doing foreshadowed the arbitrator's finding, that acceptance of his severance pay cancelled his accumulated seniority and cut off any right to reemployment.
Nor does plaintiff's tortuous reading of Hackett v. McGuire Brothers, Inc., supra, make that case apposite to the motion at bar. Far from standing for the proposition, as plaintiff argues, that the only consequence of accepting of severance or pension benefits is to mitigate damages, Hackett holds that where a pension plan makes no mention of mutually exclusive remedies, acceptance of earned pension benefits does not preclude an employee's action against his union and former employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Plaintiff's third assignment of legal error -- the arbitrator's holding that no prejudice inured to Lucas from the failure of Philco-Ford's plant physician to testify in response to his subpoena
-- can prevail only if it constitutes misconduct on the part of the arbitrator in refusing to hear evidence pertinent and material to the controversy, within the meaning of 9 U.S.C. § 10(c). The leading case in this Circuit on what constitutes misconduct of an arbitrator in refusing to hear evidence is Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, cert. denied, 393 U.S. 954, 89 S. Ct. 378, 21 L. Ed. 2d 365 (1968). Taking a common sense approach, the Court of Appeals held in that case that a fair accommodation between subsection (c) and the inherent nature of arbitration required that in order to justify vacation of an award, an arbitrator's refusal to hear evidence must not be simply an error of law, but also must so affect the rights of a party as to deprive him of a fair hearing. 397 F.2d at 599.
In the instant proceeding, there was no refusal by the arbitrator to hear the physician's testimony. Rather, the doctor simply failed to appear. Such a circumstance plainly fails to satisfy either Section 10(c) or Newark Stereotypers'. Moreover, the fact that plaintiff was not denied a fair hearing, nor prejudiced at all within the meaning of the Arbitration Act, is evident from the arbitrator's opinion, wherein he said:
The failure of Dr. Escarte to testify at the arbitration hearing could not have prejudiced grievant's case. The Company did not dispute the seriousness of grievant's condition. However, any action affecting an employee's status was based, at least initially, on the medical opinion of the employee's own physician. This is the procedure usually preferred by workers because it avoids undue invasion of privacy by the plant physician. That the Company should have taken the initiative in evaluating grievant's health is a strange contention for grievant to advance, particularly since he was cognizant of Union affairs.
Plaintiff's final contention, that the arbitrator erred as a matter of law, in holding that his decision has value in Lucas' ongoing dispute with the union, although not without some merit, is insufficient to vacate the award. "As a general rule, an award can have no effect to establish rights or duties in favor of or against persons who are not parties to the submission [footnote omitted]." 6 C.J.S. Arbitration and Award § 94b, at 239; see, e.g., Orion Shipping & Trading Co. v. Eastern States Petroleum Corp., supra, 312 F.2d at 300-01; Interamerican Refining Corp. v. Texaco Maracaibo, Inc., 307 F. Supp. 1291, 1300 (D. Del. 1970). An exception to the foregoing rule apparently has been carved out, at least in some states, to the extent that an award may be used as evidence for or against a stranger under certain circumstances. See 6 C.J.S. Arbitration and Award § 94b, at 239. Although a similar exception arguably may exist under recently approved Federal Rules of Evidence,
as is the case with all potentially prejudicial evidence, the admissibility of the award would lie within the sound discretion of the trial judge.
See United States v. Ravich, 421 F.2d 1196, 1204-05 (2d Cir.), cert. denied, 400 U.S. 834, 91 S. Ct. 69, 27 L. Ed. 2d 66 (1970); Smith v. Spina, 477 F.2d 1140, 1146 (3d Cir. 1973); McCormick on Evidence (2d ed.) § 185 at 440. For the time being then, the arbitrator's statement regarding the precedential value of his decision should be treated as surplusage, unnecessary to either the opinion or the award.
In concluding, I am reminded of a recent remark by Judge Rosenn:
The discharge of an employee, especially one who has given many years of valuable service, is generally a painful and traumatic experience for both employer and employee.