This was the issue presented to Arbitrator Dissen: "Whether management had proper cause to remove the Grievant from the payroll and, later, terminate the Grievant for his refusal to comply with the provisions of the Non-Occupational Illness or Injury Allowance Policy and to permit a reasonable and necessary medical examination." In the Statement on Behalf of the Company filed with Arbitrator Dissen, the plaintiff argued that the grievant made no effort whatsoever to explain his actions or take steps to protect his future employment. We find that Arbitrator Dissen was presented with the issue of whether the plaintiff was justified in denying benefits and terminating the grievant due to the grievant's failure to adhere to all of the requirements set forth in Section 1(A) of Appendix 3 of the Allowance Policy.
Arbitrator Dissen's opinion only discusses the medical examination requirement set forth in Section 1(A)(6) of Appendix 3. He failed to consider whether the grievant fulfilled the other five requirements listed in that section. We find this to be error.
Appendix 3 expressly provides that payment under the Allowance Policy is conditioned on an employee's fulfilling the six listed requirements. We are not presented with an adequate record upon which to make the necessary findings. Furthermore, it is the fact finding of the arbitrator that the parties agreed to abide by. We thus decline to make any determination as to whether the grievant fulfilled the remaining five conditions.
Pursuant to federal common law, a federal district court may remand a case to an arbitrator where the submitted issues are not fully resolved, Oil, Chemical & Atomic Workers International Union, Local 4-367 v. Rohm & Haas, Texas, Inc., 677 F.2d 492, 495 (5th Cir. 1982), or where the arbitrator's award is incomplete, United Steelworkers of America, District 36, Local 8249 v. Adbill Management Corp., 754 F.2d 138, 141 (3rd Cir. 1985); Hart v. Overseas National Airways, Inc., 541 F.2d 386, 392 n.15 (3rd Cir. 1976), or indefinite, Americas Insurance Co. v. Seagull Compania Naviera, S.A., 774 F.2d 64, 67 (2nd Cir. 1985). The United States Supreme Court has also recently noted that federal courts may remand arbitration awards for further proceedings "when this step seems appropriate." United Paperworkers, 56 U.S.L.W. at 4015 n. 10.
We feel that a remand of the incomplete and unresolved arbitration award of Arbitrator Dissen in this case is an appropriate step. On remand, the arbitrator is to determine whether the grievant fulfilled conditions numbered one through five in Section 1(A) of Appendix 3, and if not, whether the plaintiff, within the confines of the agreement, properly responded to such failure.
There is one last matter for our consideration. The defendant Unions' request that we order the plaintiff to pay interest on the back pay awarded to the grievant and attorneys' fees due to the plaintiff's unjustified refusal to abide by the arbitration award. In light of our order to remand this action to arbitration, we decline to review this request at this time.
For the reasons set forth above, we will deny plaintiff's motion for summary judgment. We will grant the defendants' motion for summary judgment to the extent that Arbitrator Dissen held that the grievant did not violate Section 1(A)(6) of Appendix 3 of the Allowance Policy by refusing drug testing on and after June 20, 1986. We will remand this case to arbitration for proceedings consistent with this Opinion.
An appropriate order will issue.
AND NOW, to wit, this 30th day of December, 1987, for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that:
1) Plaintiff's Motion for Summary Judgment be and hereby is DENIED;
2) Defendants' Motion for Summary Judgment be and hereby is GRANTED to the extent that Arbitrator Dissen held that the grievant did not violate Section 1(A)(6) of Appendix 3 of the Allowance Policy by refusing drug testing on and after June 20, 1986.
3) This case be and hereby is remanded to arbitration for further proceedings consistent with this Opinion.
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