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WAREHOUSE EMPLES., LOCAL 169 v. ACME MKTS.

July 12, 1979

WAREHOUSE EMPLOYEES, LOCAL 169
v.
ACME MARKETS, INC.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

In this action brought pursuant to section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), *fn1" plaintiff, Warehouse Employees, Local 169 (Local 169), seeks to have the Court vacate an arbitrator's award denying a grievance in connection with a layoff by defendant, Acme Markets, Inc. (Acme), of employees who were members of Local 169. Both Local 169 and Acme have moved for summary judgment. For the reasons hereinafter discussed, the Court will grant Acme's motion for summary judgment and deny Local 169's motion for summary judgment vacating the award of the arbitrator.

 There are no material facts in dispute. Defendant, Acme, employs warehousemen at its Distribution Centers, who are represented, for collective bargaining purposes, by plaintiff, Local 169. Acme and Local 169 are parties to a collective bargaining agreement which became effective on January 30, 1977 and expires on February 2, 1980. Acme, Food Fair and A&P comprised the Philadelphia Food Fair Employers' Labor Council (Employers' Council), a multi-employer bargaining association which bargains collectively with various unions. On or about March 7, 1977 the collective bargaining agreement between the Employers' Council and the Meatcutters Union expired, and the Meatcutters commenced a strike against Food Fair. By the morning of March 8, Acme and A&P closed the meat departments of their retail stores in the Delaware Valley. On March 9, 1977, Acme closed all of its retail stores in the Delaware Valley and notified all warehousemen, except for a few who were kept working to remove perishables, that they would be laid off at the conclusion of their shift on that day. The Clerks Union filed a grievance against Acme and A&P on March 9, 1977 contending that its members had been locked out by the two chains in violation of the "no-lockout" clause of its collective bargaining agreement with the Employers' Council. On March 16, 1977, Arbitrator Gill held that the closing of the stores by Acme and A&P constituted a "strategic" shutdown and was, as a result, a prohibited lockout. In light of the Gill award, Acme reopened its retail stores on March 19, 1977 and terminated the layoffs of the warehousemen on that date. *fn2"

 During this same period, the Bakery Workers Local 6, representing the bakery workers at Acme's Philadelphia bakery which had been closed along with Acme's retail stores and Distribution Centers, filed a lockout grievance against Acme. The hearing in connection with that grievance was held on December 27, 1977 before Arbitrator Koretz, whose decision finding that there was a lockout became known to the parties in the present action on February 24, 1978, prior to Arbitrator Buckwalter's decision, but subsequent to the closing of the record by Arbitrator Buckwalter.

 Counsel for Local 169, by letter dated February 24, 1978, requested through the American Arbitration Association (AAA), under whose auspices the arbitration was held, that Arbitrator Buckwalter reopen the hearing in order to consider the Koretz decision. Acme objected to this request to reopen the hearing by letter dated February 28, 1978, but stated that in the event the AAA transmitted the request to Arbitrator Buckwalter, it should also transmit a copy of the Koretz Opinion and Award and a letter enclosed from Acme's counsel to Arbitrator Buckwalter, dated February 28, 1978, stating Acme's position that if the Arbitrator entertained Local 169's request, Acme preferred that he actually read the Koretz decision in conjunction with the enclosed letter. The AAA decided to transmit the request to Arbitrator Buckwalter, who ruled that the hearing would not be reopened. The parties were so notified by the AAA by letter dated March 6, 1978. Arbitrator Buckwalter rendered his decision denying Local 169's grievance on March 7, 1978.

 In its motion for summary judgment vacating the award of the arbitrator, Local 169 contends that Arbitrator Buckwalter, by deciding not to reopen the hearing to accept the Koretz decision into the record, exceeded his authority and refused to hear pertinent and material evidence, thereby depriving plaintiff of a fair hearing. In its motion for summary judgment affirming the award of the arbitrator, Acme contends that because Arbitrator Buckwalter's decision drew its essence from the collective bargaining agreement, Acme is entitled, as a matter of law, to have his award affirmed by this Court.

 Jurisdiction to review arbitration awards exists in this Court pursuant to section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185. See, e.g., Int'l Federation of Professional & Technical Engineers v. RCA Corp., 461 F. Supp. 957 (E.D. Pa. 1978); 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). Reviewing courts traditionally have been reluctant to set aside arbitrators' decisions. This reluctance is consonant with the strong federal policy favoring the resolution of industrial disputes by arbitration. See 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. 1347, 4 L. Ed. 2d 1409 (1960); Gavlik Construction Co. v. H. F. Campbell v. The Wickes Corp., 526 F.2d 777 (3d Cir. 1975). The court's policy in this regard stems from the recognition that "(i)t is the arbitrators' construction which was bargained for . . ." United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). A reviewing court may not interfere with an arbitration award simply because the court differs with an arbitrator's interpretation of provisions of the collective bargaining agreement; on the other hand, an arbitrator's zone of action is confined to the four corners of the bargaining agreement. Id.; International Federation of Professional & Technical Engineers v. RCA Corp., 461 F. Supp. 957 (E.D. Pa. 1978).

 The scope of our review of the arbitrator's award is narrowly circumscribed. We may 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 (3d Cir. 1969). The sole question before the Court 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). 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. Ludwig Honold, supra, 405 F.2d at 1132; Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577, 582 (2d Cir. 1967); 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); Transport Workers Union of Philadelphia, AFL-CIO, Local 234 v. Philadelphia Transportation Co., 283 F. Supp. 597, 599 (E.D. Pa. 1968). 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, 367 F. Supp. 760, 764 (E.D. Pa.1973); American Can Co. v. United Papermakers and Paperworkers, AFL-CIO, 356 F. Supp. 495-500 (E.D. Pa. 1973).

 With the foregoing precepts as a foundation, we have reviewed the record of the arbitration and conclude that the motion of the plaintiff, Local 169, to have the Court vacate the arbitrator's award must be denied and that the motion of defendant, Acme, for summary judgment must be granted.

 In determining whether an arbitrator exceeded his authority in making an award, this Court is guided by the standard enunciated by the Supreme Court in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 1361, 4 L. Ed. 2d 1424 (1960):

 
(A)n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's awards manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

 Acme contends that Arbitrator Buckwalter's award drew its essence from the collective bargaining agreement. Our Third Circuit, in Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969), held that an arbitrator's award draws its essence from the collective bargaining agreement if "the interpretation can in any rational way be derived from the agreement." Id. at 1128; International Federation of Professional and Technical Engineers v. RCA Corp., 461 F. Supp. 957, 970 (E.D. Pa. 1978). Thus, this Court must determine whether Arbitrator Buckwalter's decision can in any rational way be derived from the collective bargaining agreement.

 The contractual clause at issue in the present case is Section 36 of the collective bargaining agreement between Acme, through the Employers' Council and ...


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