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January 7, 1982


The opinion of the court was delivered by: FULLAM


On August 5, 1981, invoking the jurisdiction of this Court under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, and 28 U.S.C. §§ 1337 and 2201, plaintiff-employer filed its Complaint in this action. The Complaint contained two counts: In Count I, plaintiff sought confirmation of an arbitrator's award entered July 23, 1979. In Count II, plaintiff sought to have an arbitrator's award which was entered May 9, 1981 vacated and set aside. The gist of the plaintiff's action is that the second award, which was favorable to the union, is inconsistent with the earlier award.

 On October 6, 1981, plaintiff amended its Complaint. The Amended Complaint contains only one count, seeking, in the alternative, that the 1979 award be confirmed, and the defendant enjoined from relying upon the 1981 award, or that both awards be remanded to the arbitrators for further proceedings.

 The timeliness of an action under § 301 of the LMRA is to be determined by reference to the appropriate state statute of limitations. United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-705, 86 S. Ct. 1107, 1112-1113, 16 L. Ed. 2d 192 (1965). The appropriate state statute of limitations is that governing actions to vacate an arbitrator's award, rather than the statute applicable to contracts in general. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S. Ct. 1559, 67 L. Ed. 2d 732 (1981). Pennsylvania's version of the Uniform Arbitration Act, 42 Pa.C.S. §§ 7301 et seq., effective December 5, 1980, provides, in § 7314(b):

"Time limitation.
"Application under this section shall be made within 30 days after delivery of the copy of an award to the applicant, except that, if predicated upon corruption, fraud, misconduct, or other improper means, it shall be made within 30 days after such grounds are known or should have been known to the applicant."

 It is undisputed that the 30-day limitations period for the second arbitration award in this case began to run not later than May 23, 1981. Accordingly, this Court is without jurisdiction to consider a direct challenge to the 1981 award. Plaintiff seeks to avoid this obstacle by making two arguments, neither of which, in my view, has merit.

 Both arguments invoke the provisions of the Pennsylvania statute relating to confirmation of awards, 42 Pa.C.S.A. § 7313:

"On application of a party, the court shall confirm an award unless within the time limits imposed by this subchapter (i.e., the 30-day period referred to above), grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in § 7314 (relating to vacating award by court) or § 7315 (relating to modification or correction of award by court)."

 One of plaintiff's arguments requires little discussion: Plaintiff contends that this Court can properly proceed to vacate the award under § 7314 because, within 30 days after the 1981 award was rendered, plaintiff's counsel wrote a letter to the union in which "grounds (were) urged for vacating or modifying or correcting" the 1981 award, within the meaning of § 7313. The contention is frivolous. Section 7313 obviously means that the Court is to confirm the award if it has become final, i.e., unless, within the 30-day appeal period, someone has presented the Court with grounds for setting the award aside.

 Plaintiff's remaining argument is equally unpersuasive. The argument is that, since there is no time limit for applications to confirm awards, this Court does have jurisdiction to confirm the 1979 award; and that confirmation of the 1979 award may properly include an injunction against enforcement of the 1981 award, or at least a remand of both awards to the arbitrators for clarification and reconciliation.

 In the 1979 proceeding, three employees who had been disciplined for "irregular attendance" complained that the company's action was impermissible under the collective bargaining agreement because no such offense was designated in the list of disciplinary offenses set forth in an appendix to the agreement. The arbitrator (Mr. Howard) agreed. He found that the company and the union had negotiated and agreed upon the method for dealing with problems of excessive absenteeism under the designation "unnecessary loss of time". He sustained the grievance, and ordered the correction of the personnel records of the grievants.

 In the 1981 proceeding, another employee challenged the company's imposition of discipline under its program for curtailing excessive absenteeism, insofar as it was based upon absences due to disability (hence, he contended, not "unnecessary"). The arbitrator (Mr. Mullin) sustained the grievance, holding, inter alia, (1) that to sustain imposition of discipline for "unnecessary loss of time" it must appear that the absences were not justified (as defined elsewhere in the contract); (2) that to regard absences due to disability as a basis for discipline would violate provisions in the collective bargaining agreement relating to disability; and (3) that, for all purposes of the absenteeism program, the only absences which could be considered were those occurring within the most recent four years.

 Arbitrator Mullin carefully considered the earlier award made by Arbitrator Howard, and concluded that his decision was consistent with that award. Indeed, Arbitrator Mullin devoted some four ...

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