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June 30, 1975


The opinion of the court was delivered by: DITTER

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 399 F. Supp.]


 AND NOW, this 2nd day of July, 1975, it is ordered that:

 1. The Order of June 30, 1975, in the above captioned proceeding is hereby vacated; and

 2. after consideration of the memoranda of law submitted in support of and in opposition to plaintiff's motion to vacate the award of the arbitrator and after a careful review of the record of the arbitration proceedings, the motion is hereby refused.


 J. William Ditter, Jr.


 This case comes before the court on a motion to vacate an arbitrator's award in a dispute growing out of plaintiff's discharge by his former employer, one of the defendants. The other defendant, plaintiff's local union, was not involved in this part of the proceedings.

 In a prior opinion and order, I granted the employer's motion for summary judgment on condition that (1) the question of the legality of the plaintiff's discharge be submitted to binding and final arbitration under the auspices of the American Arbitration Association before an arbitrator acceptable to plaintiff, and (2) the plaintiff be permitted to argue the merits of his grievance without the advice or assistance of the union or its counsel. See Lucas v. Philco-Ford Corporation, 380 F. Supp. 139 (E.D. Pa. 1974).

 Having been set out at length in my previous opinion, the facts giving rise to this suit need not be belabored here. Suffice it to say that after nearly twenty years of employment by Philco-Ford, plaintiff, Joseph Lucas, Jr., was discharged for refusing to accept overtime assignments without having a "reasonable reason" within the meaning of the collective bargaining agreement between his union and employer. After exhausting three steps of the grievance procedure prescribed by the collective bargaining agreement, plaintiff brought suit against his employer for wrongfully discharging him and against his union local for failing to represent him fairly and for conspiring with the company to injure and harass him.

 Pursuant to my conditional grant of summary judgment to Philco-Ford, *fn1" an arbitrator mutually acceptable to the parties was selected, and on November 21, 1974, a hearing was held in the Philadelphia offices of the American Arbitration Association. On March 3, 1975, the arbitrator issued an opinion and award holding that plaintiff was discharged for good cause and accordingly, denying his grievance. Following an unsuccessful effort to have the matter reconsidered, *fn2" plaintiff filed the instant motion to vacate the arbitrator's decision as manifestly contrary to both the facts and the law.

 Jurisdiction to review arbitration awards exists in this court pursuant to Section 301(a) of the Taft-Hartley Act of 1947, 29 U.S.C. § 185(a), *fn3" see, e.g., Medo Photo Supply Corp. v. Livingston, 274 F. Supp. 209, 213 (S.D. N.Y.), aff'd, 386 F.2d 451 (2d Cir. 1967); Kracoff v. Retail Clerks Local Union No. 1357, 244 F. Supp. 38, 40 (E.D. Pa. 1965), and Section 10 of the United States Arbitration Act, 9 U.S.C. § 10, *fn4" see, e.g., Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 275-76, 52 S. Ct. 166, 169, 76 L. Ed. 282 (1932); Monte v. Southern Delaware County Authority, 212 F. Supp. 604, 613 (E.D. Pa.), reversed on other grounds, 321 F.2d 870 (3d Cir. 1963). *fn5" Nevertheless, as plaintiff candidly concedes in his memorandum in support of the present motion, reviewing courts traditionally have been reluctant to set aside arbitrator's decisions. *fn6" This reluctance is consonant with the strong federal policy favoring the resolution of industrial disputes outside the courts, see, e.g., John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960), and stems from the recognition that "it is the arbitrator's construction which was bargained for." United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 599, 80 S. Ct. 1358, 1362, 4 L. Ed. 2d 1424 (1960); see United Steelworkers of America v. American Manufacturing Co., supra, 363 U.S. at 568, 80 S. Ct. at 1346. *fn7"

 Accordingly, the scope of my review of the arbitrator's award is narrowly circumscribed. *fn8" I can only disturb the award where there is a manifest disregard of the collective bargaining agreement, totally unsupported by principles of contract construction and the law of the shop; when fraud, partiality, or other misconduct on the part of the arbitrator is shown; or when the award violates the command of some law, is too vague and ambiguous to be enforced, or is inconsistent with public policy, Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123, 1128-29 n. 27 (3d Cir. 1969), and accompanying text. To borrow the language of the courts of appeals for the First and Fifth Circuits, the sole question before me is whether the arbitrator's decision is, "by reason of some circumstance outside the contract itself, 'so palpably faulty that no judge, or group of judges, could ever conceivably have made such a ruling.'" International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Peerless Pressed Metal Corp., 489 F.2d 768, 769 (1st Cir. 1973), quoting Safeway Stores v. Bakery Workers Local 111, 390 F.2d 79, 82 (5th Cir. 1968).

 With the foregoing precepts as my lodestar, and after a careful review of the record of the arbitration process, I conclude that the arbitrator's award must be confirmed. It has long been the rule that an award will not be set aside merely because the arbitrator erred in finding the facts or applying the law. See, e.g., Orion Shipping and Trading Co. v. Eastern States Petroleum Corp., 312 F.2d 299, 300 (2d Cir.), cert. denied, 373 U.S. 949, 83 S. Ct. 1679, 10 L. Ed. 2d 705 (1963); Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577, 582 (2d Cir. 1967); Transport Workers Union of Philadelphia, AFL-CIO, Local 234 v. Philadelphia Transportation Co., 283 F. Supp. 597, 599 (E.D. Pa. 1968); see generally Comment, Commercial Arbitration Under the Federal Act: Expanding the Scope of Judicial Review, 35 U. Pitt. L. Rev. 799, 807 (1974). In this regard it must be remembered that it is the award, rather than the specific reasoning employed that a court must review. Schlesinger v. Building Service Employees International Union, Local 252, AFL-CIO, 367 F. Supp. 760, 764 (E.D. Pa. 1973); American Can Co. v. United Papermakers and Paperworkers, AFL-CIO, 356 F. Supp. 495, 499-500 (E.D. Pa. 1973).

 Plaintiff's fundamental dispute with the arbitrator's findings of fact centers around the reasons Lucas gave for refusing to accept overtime assignments. Plaintiff contends that he informed the company that his refusals primarily were the result of a gall bladder condition, and only secondarily because he wished to be at home to care for his children. The company, on the other hand, avers that Lucas grounded his refusals on his desire to be with his children, and was warned on numerous 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." *fn9"

 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. *fn10"

 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 *fn11" -- 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. *fn12"

  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. *fn13"

 App. 213-14.

 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, *fn14" as is the case with all potentially prejudicial evidence, the admissibility of the award would lie within the sound discretion of the trial judge. *fn15" 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.

  Barnes v. Chatterton, 515 F.2d 916, 918 (3d Cir. 1975). *fn16" While I fully echo these sentiments, I can find no reason to vacate the arbitrator's award. Plaintiff's motion accordingly will be denied.


 AND NOW, this 30th day of June, 1975, after consideration of the memoranda of law submitted in support of and in opposition to defendant's motion to vacate the award of the arbitrator in the above captioned case, and after a careful review of the record of the arbitration proceedings, it is ordered that the motion is hereby refused.

 BY THE COURT: J. William Ditter, Jr. / J.

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