draws its essence from the collective bargaining agreement if the interpretation can in any way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties' intention; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award. See Ludwig Honold Mfg. Co. v. Fletcher, supra.
Thus, the circumstances in which an arbitrator's award may be disturbed are extreme: the award may be disturbed if it is too vague and ambiguous for enforcement, Ferrick v. B. & O. Railroad Co., 447 F.2d 89 (3d Cir. 1971); Ludwig Honold Mfg. Co. v. Fletcher, supra ; or if the award is dishonest, capricious or beyond the authority of the collective bargaining agreement, Price v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 457 F.2d 605 (3d Cir. 1972); or if it is completely irrational, Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125 (3d Cir. 1972); or if it is patently frivolous, Amalgamated Meat Cutters v. Cross Brothers Meat Packers, 518 F.2d 1113 (3d Cir. 1975); or if an examination of the record before the arbitrator reveals no support for the award, NF&M Corp. v. United Steelworkers of America, 524 F.2d 756 (3d Cir. 1975).
The Council argues that Arbitrator Gill's award is within these extreme circumstances, and should therefore be vacated. Specifically, the Council contends that the Arbitrator capriciously disregarded the accepted definition of the term "lockout". A "lockout" is defined as "an employer's withholding of work from his employees in order to gain a concession from them." (Emphasis added) Restatement of Torts, Section 787, comment a, cited in Local 50, Bakery & Confectionery Workers, International Union of America, AFL v. General Baking Co. et al., 97 F. Supp. 73 (S.D.N.Y. 1951). See also Brandenburg v. Capitol Distributors Corp. et al., 353 F. Supp. 115 (S.D.N.Y. 1972); News Union of Baltimore v. Hearst Corporation, 278 F. Supp. 423 (D. Md. 1968); Associated Transport, Inc., 50 Lab. Arb. (BNA) 236 (1968); Akers Motor Lines, Inc., 51 Lab. Arb. (BNA) 1955 (1968); Mich. Lathing & Plastering Contractors Association, 52 Lab. Arb. (BNA) 997 (1969); Bell Aerosystems Co., 54 Lab. Arb. (BNA) 745 (1970).
The Council argues that for a lockout to exist, there must be four elements: (1) a dispute between the employer and those employees claiming to be locked out; (2) the closing of the place of employment by the employer; (3) the action of the employer must be offensive, not defensive; (4) the termination must be implemented as an economic weapon for the purpose of exacting concessions from those employees claiming a lockout. Furthermore, in their briefs before the arbitrator, the Unions contended that for a lockout to exist, there must be these elements: (1) the existence of a dispute; (2) offensive employer action; (3) the purpose of which is to use the locked out employee as leverage to gain concessions from the striking employees. The parties thus sharply dispute whether the dispute existing must be between the employer and the employees alleging the existence of a lockout, or whether it is sufficient that a dispute exist between the employer and any employees, and that the employer locks out the employees alleging such action in order to gain advantage over the employees with whom the dispute exists. It is highly significant that prior to the award both parties were in complete agreement that offensive conduct was required by the employer, and that the employer must be seeking leverage over or concessions from some employees, whether they be the employees in dispute with management or the employees claiming the lockout.
Despite this degree of understanding between the parties and despite the cases and arbitration decisions holding that a lockout requires that an employer withhold work in order to gain concessions from employees, Arbitrator Gill devised his own definition of this most crucial term. He held that a lockout exists if the employer is engaged in "strategic" conduct. In so doing, he held that an employer could violate the law if his conduct was not offensive, or designed to gain leverage over or exact concessions from employees.
We find that in so holding Arbitrator Gill disregarded the intent of the parties. Clearly when the contract was drafted, and later when arbitration was sought, the parties deemed offensive employer action an element of a lockout. However, Arbitrator Gill nullified this requirement, without being asked to do so by the Unions in their briefs submitted to him. By ignoring the intent of the parties, he reached a decision that does not draw its essence from the collective bargaining agreement, because his interpretation cannot be derived from the agreement, in light of the language - the term lockout - and other indicia of the parties' intention, as are manifested, inter alia, by the Unions' brief submitted to Arbitrator Gill. Furthermore, the award was in "manifest disregard" of the law, as well as of the agreement. Thus, this Court may disturb the award, pursuant to the dictates of Ludwig Honold and the other cases cited above.
Furthermore, the Court must so act to restore proper contractual equilibrium to the parties. It is ironic that Arbitrator Gill, in spite of the contractual prohibition against his amending, modifying, or changing the agreement, or establishing any terms or conditions under the agreement, did modify a crucial term and then observed:
"Finally, I must frankly acknowledge that the result here, viewed apart from the legalities of the matter, may seem to leave the bargaining postures of the parties somewhat lopsided and arguably unfair to management. The Clerks can and did shut down Food Fair entirely by honoring the Meatcutters' picket lines, while the management can only retaliate by shutting down the meat departments at Acme and A & P, thus putting management in the position of trying to fight with one hand tied behind its back. * * *" Retail Clerks International Association and Acme Markets, Inc. and The Great Atlantic and Pacific Tea Company, Inc., (AAA Case No. 14 30 0308 77 MC) Slip Opinion at p.6.
Thus, in vacating this holding by Arbitrator Gill, this Court is not only upholding the principle established by the Supreme Court in United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960), that an arbitrator does not sit to dispense his own brand of industrial justice, and that when an arbitrator's words manifest an infidelity to his obligation to draw the essence of his award from the collective bargaining agreement the courts have no choice but to refuse enforcement of the award; this Court is also unbinding the hand of the Council which was bound behind its back not by the terms of the contract but by Arbitrator Gill's brand of industrial justice; in so doing we are restoring the arm's length posture the parties occupied prior to this award.
In finding that offensive conduct or an effort to gain advantage over employees is a necessity in order to find the existence of a lockout, we then note that in his opinion Arbitrator Gill found that the decision of Acme and A & P to shut down was motivated by their desire to preserve the integrity of the multi-employer bargaining, to prevent the three member chains from being whipsawed by having one shut down while the others continued to be open, thus bringing obvious pressure on the struck chain to reach a settlement; he found that the "purpose was to prevent whipsawing in the Meatcutters' negotiations, rather than to gain some immediate or future concession from the Clerks * * *" Retail Clerks International and Acme Markets, Inc. and The Great Atlantic and Pacific Tea Company, Inc., supra, at p. 5. Thus, by his own terms, there was no offensive conduct or intent to gain concessions from the employees. Therefore, the termination of business at the Acme and A & P Stores cannot be considered a lockout in violation of the contract.
Accordingly, the plaintiff's motion for summary judgment will be granted and the defendant's motion for summary judgment will be denied.
AND NOW, this 30th day of June, 1978, IT IS ORDERED that plaintiff's motion for summary judgment is GRANTED and defendant's motion for summary judgment is DENIED.
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