The opinion of the court was delivered by: NEALON
It is by now an axiom of federal labor law that an award following properly conducted arbitration proceedings shall not be set aside so long as the award "draws its essence from the collective bargaining agreement." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 1361, 4 L. Ed. 2d 1424 (1960); Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3rd Cir. 1969). As explained by the Court in United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at 599, 80 S. Ct. at 1362:
The question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.
This rudimentary principle recognizes that disputed terms of a collective bargaining agreement may be susceptible to several reasonable interpretations and that deference should ordinarily be accorded the arbitrator's interpretation.
The above-captioned actions present the somewhat unique situation of two conflicting interpretations of the same contractual provision by different arbitrators. In Civil No. 78-862, Arbitration No. 1, the arbitrator (Harry Pollock) found in favor of Haddon Craftsmen, Inc. (Company) (Award dated June 28, 1978); in Civil No. 79-466, Arbitration No. 2, the arbitrator (I. Herman Stern) found in favor of Local 97-B of the Graphic Arts International Union (Union) (Award dated March 29, 1979). These actions are now before the Court on the Company's motions for summary judgment.
Both the Company and the Union contend that the award adverse to their respective positions fails to draw its essence from the collective bargaining agreement. In effect, the Company and the Union call upon this Court to resolve the conflict between the awards by placing its imprimatur on one of the two. The invitation need not be accepted. Having examined the record and the applicable law I find that both awards are rational interpretations of the collective bargaining agreement and, therefore, may not be judicially overruled.
The parties have also voiced technical objections to the arbitration awards. The Union contends that Arbitrator Pollock, who decided the dispute against it, was not impartial and failed to disclose prior associations that might create an impression of bias. The Company contends that Arbitrator Stern, who resolved the matter against it, denied it a fair hearing by failing to permit testimony on matters covered by Company counsel in his opening statements and by attempting to rule that the contrary determination by Arbitrator Pollock was clearly erroneous. These technical objections are without substance and do not warrant vacation of either award.
Finally, the Union seeks to set aside a separate award upholding the Company's unilateral imposition of a disciplinary program that led to a week-long suspension of one of its members. The Union's grounds are without merit and judgment in the Company's favor will be entered.
The Union is a "labor organization" as defined in section 2(5) of the Labor Management Relations Act, as amended, 29 U.S.C. § 152(5) (LMRA); the Company is an "employer" within the intendment of Section 2(2) of the LMRA, 29 U.S.C. § 152(2) and is engaged in business in the graphic arts industry. The Union and the Company are parties to a collective bargaining agreement that sets up grievance machinery culminating in compulsory arbitration. See Article VIII of the Agreement between Company and Union.
After the Union unsuccessfully grieved the disciplinary suspension of Joseph Havenstrite and the lay-off of 12 admittedly untrained employees out of seniority, the parties proceeded to arbitration before Harry Pollock (Arbitration No. 1). The Pollock awards sustained the Company's actions. The Union then filed suit to vacate Arbitrator Pollock's awards, invoking jurisdiction under section 301 of the LMRA, 29 U.S.C. § 185,
and section 10 of the Federal Arbitration Act, 9 U.S.C. § 10.
This action is docketed to Civil No. 78-862.
Shortly after the filing of the Union action, another grievance concerning the out of seniority lay-off of 13 additional Company employees proceeded to arbitration before I. Herman Stern (Arbitration No. 2). Arbitrator Stern reached a conclusion contrary to Arbitrator Pollock's and decreed that the Company's actions violated the pertinent seniority provisions of the collective bargaining agreement. The Company subsequently instituted the civil suit docketed to No. 79-466, requesting the vacation of the Stern award. Jurisdiction was also invoked under 29 U.S.C. § 185 and 9 U.S.C. § 10.
The Union contends that arbitrator Pollock evidenced partiality during the proceedings and that he failed to disclose associations with the management side of the graphic arts industry. It is, of course, well-settled that "evident partiality," see 9 U.S.C. § 10(d), and failure to disclose "dealings that might create an impression of possible bias" are grounds for vacating an arbitration award. See Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 149, 89 S. Ct. 337, 339, 21 L. Ed. 2d 301 (1968); Sanko S.S. Co. v. Cook Industries, Inc., 495 F.2d 1260, 1263-64 (2nd Cir. 1973). It is also well-settled, however, that a party may not await an adverse award before asserting objections on grounds of which he had knowledge prior to the award. See Cook Industries, Inc. v. C. Itoh & Co., 449 F.2d 106, 107-08 (2nd Cir. 1971), cert. denied, 405 U.S. 921, 92 S. Ct. 957, 30 L. Ed. 2d 792 (1972); Cities Service Oil Co. v. American Mineral Spirits Co., 22 F. Supp. 373 (S.D.N.Y.1937). Cf. Amalgamated Meat Cutters and Butcher Workmen, Local 195 v. Cross Brothers Meat Packers, Inc., 518 F.2d 1113, 1121 (3rd Cir. 1975); West Rock Lodge No. 2120, International Association of Machinists v. Geometric Tool Co., 406 F.2d 284, 286 (2nd Cir. 1968).
The record discloses the following undisputed material facts: (1) Arbitrator Pollock has never represented or dealt with the Company; (2) Pollock was no longer actively involved in labor relations matters at the time of the arbitration proceeding; (3) Pollock had previously rendered legal assistance in labor relations matters to firms engaged in the graphic arts industry; (4) counsel for Union learned of this legal representation shortly after the close of the hearings; and (5) counsel for the Union did not object at any time either to the conduct of the hearing or the integrity of the arbitrator.
The Union certainly could have interposed an objection prior to Arbitrator Pollock's awards, challenging either the conduct of the hearings or the arbitrator's failure to disclose his association with the graphic arts industry. The Union's belated cry of "bias" cannot now form a basis for setting aside the award; its silence constituted a ...