On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Civ. Action No. 93-cv-00807).
Before: Greenberg, Roth and Rosenn, Circuit Judges.
This appeal requires us to determine whether a portion of an arbitration award should be struck down on the ground that the arbitrator exceeded the scope of his authority. Because we find that the arbitrator's response did not exceed the scope of the question presented, we will affirm the district court's decision upholding the arbitration award.
The facts of the case are undisputed. On or about February 7, 1992, United Parcel Service ("UPS") discharged Thomas Varish for poor work performance. Thereafter, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 430 (the "Union") filed a grievance on behalf of Varish under the procedures set forth in the parties' collective bargaining agreement (the "Agreement"). After UPS and the Union were unable to reach an accord with respect to Varish's discharge, the parties submitted the dispute to the Central Pennsylvania Area Parcel Grievance Committee (the "Joint Panel" or "Panel")*fn1, as required by the Agreement.
At the hearing before the Joint Panel, the Union representative presenting Varish's case raised a Point of Order challenging UPS's attempt to introduce into evidence notations of informal disciplinary actions previously taken against Varish. These informal actions are typically referred to as "talk-with's" and "talk-to's," which are verbal reprimands or comments, or "write-up's," which are written records of reprimands or comments.*fn2 The Panel considered the Point of Order, but could not resolve the issue. Accordingly, the Panel issued the following decision:
A Point of Order was raised and Executive Session was called. The Panel deadlocked on the Point of Order. The question is whether [UPS] may enter into the record, "talk-with's," "talk-to's" or "write-up's" which [sic] the Union had no prior knowledge.
As required by the parties' Agreement, the parties submitted the Point of Order to an arbitrator. After hearing two days of testimony and reviewing post-arbitration briefs, Arbitrator Eli Rock rendered an award and opinion in this matter. The two paragraph award reads as follows:
1. On the general question of the admissibility of talk-to's and the like before the Joint Panel where the Union members object, the ruling is that such material may not be admitted over the objection of the Union members.
2. In the present particular case involving employee Varish, and limited to the present submission to arbitration, the disputed material may be admitted.
In his memorandum detailing his decision, Arbitrator Rock explained his analytical process as follows:
Addressing myself to [the Point of Order], it appears to me that I have no choice, in this case but to break down the issue into the broader and general question of [UPS]'s right to introduce "talk-with's" and the like over the Union's objections, and secondly [UPS]'s right to do so in the present specific case, involving grievant Tom Varish.
App. at 59. In the context of the question presented, i.e., the admissibility of talk-to's of which the Union had no prior knowledge, the arbitrator, in making his first "general" ruling, gave "significant weight" to the past practice of the parties. He found it to be "completely clear . . . that where the Union members have opposed the admission of 'talk-to's,' and have stuck to that position, such items have not been entered in the record." (Id. at 60).*fn3 In regard to this particular case, however, the arbitrator determined that both Varish and the Union had had ...