Petition — Boise Cascade Corp. v. United Steelworkers, Local Union No. 7001

Supreme Court, U.S

PILED

MAY 3 1979

” MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No —-%8 "1672

BOISE CASCADE CORPORATION,

Petitioner,

versus

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, LOCAL UNION NO. 7001,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Norman F. Burke, Esquire :

VAN DEN BERG, GAY & BURKE, P. A.

16 South Magnolia Avenue

Post Office Box 2193

Orlando, Florida 32802

305/423-7656

Stephen M. Kite-Powell, Esquire

Associate General Counsel

Boise Cascade Corporation

One Jefferson Square

Boise, Idaho 83728

208/384-7546

Counsel for Petitioner

SCOFIELDS QUALITY PRINTERS. P O BOX 53096, N. 0. LA. 70153 - 504/822-1611

INDEX

Page

I eect rekon seca dds cecanvesss 1

SE a 2

NS EES a 2

EOE 2

ee eka cweaes 3

Reasons for Granting the Writ .................. 5

Cee en cecaaeces Sua come

a eee kaeces's 14

Appendix A — Opinions and Judgments

IS NS SSE Ee la

CITATIONS

Cases:

Aeronca, Inc., 68 Lab.Arb. 461 (BNA 1977) ........ 4

Amanda Bent Bolt Co. v. International Union

U.A.W., 451 F.2d 1277 (6th Cir. 1971) ........ 7

Bethlehem Steel Corp., 58 Lab.Arb. 259 (BNA

Teen ee ee wee eaeese 4

General Warehousemen & Helpers Local 767 v. Stand-

ard Brands, Inc., 560 F.2d 700 (Sth Cir. 1977),

rev'd on reh. en banc, 579 F.2d 1282 (Sth Cir.

em ec ebceee cocet 10

Gimbel Bros., Inc., 63 Lab.Arb. 67 (BNA 1974) ..... 4

Longview Fibre Co., 66 Lab.Arb. 1076 (BNA

ET ES OD 4

il

CITATIONS (Continued)

Page

Mistletoe Express Service v. Motor Expressmen’s Un-

ion, 566 F.2d 692 (10th Cir. 1977) ....... ...4.. 7

Mistletoe Express Service v. Motor Expressmen’s Un-

ion, 443 F.Supp. 1 (W.D. Okla. 1976), aff'd,

SR RA ER | oo 4 Sr 8,9

Monongahela Power Co. v. Local 2332, IBEW, 566

Fane Re CORI SORE, ROPE 6 oad cc din ese 0 esta’ 7

H. K. Porter v. United Saw Workers, 333 F.2d 596

SR ENG SNELL Oa 7,8

Steelworkers v. American Mfg. Co., 363 U.S. 564 |

PE 5 fa CaN CREAN GRA GE Cia hee oak sn d-d'b 0 11

Steelworkers v. Enterprise Wheel & Car Corp., 363

C8 SE a, EPPS Apa Rig pee ere 6,11

Steelworkers v. Warrior & Gulf Navigation Co., 363

ie are REE esis soak cotanseneiheb se guia 11

Textile Workers of America v. American Thread Co.,

Bee re We We aaa, BOE) zis viii abaascc css 7

Torrington Co. v. Metal Products Workers, 362 F.2d

OFF Ae Me BOE EKA SA 6 VARMA UN Y eas hs ph bbe 7

Truck Drivers Union v. Ulry-Talbert Co., 330 F.2d

Eo ay ebachsla vakdabdeaecevess 7

Statutes:

eA cn OED 0h Snead cna se sibs undoes 2

PT Aes SU DID Os k i dice nakvicecndwes 25

ill

CITATIONS (Continued)

Page

Miscellaneous:

Abrams, The Integrity of the Arbitral Process, 76

Mich.L.Rev. 231 (1977) .. bene e eee e eee eeeees 6-7

2 Collective Bargaining-Negotiations and Contracts

SES Ce SOE as eR R eslakveveereas abeews 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

BOISE CASCADE CORPORATION,

Petitioner,

versus

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, LOCAL UNION NO. 7001,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Boise Cascade Corporation prays that a writ of cer-

tiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit, entered in

the above-captioned case on February 8, 1979.

CITATIONS TO OPINIONS BELOW

The opinion of the arbitrator is unreported and is

printed in Appendix A hereto, infra pp. la-14a. The

2

opinion of the district court is unreported and is print-

ed in Appendix A hereto, infra pp. 15a-18a. The opin-

ion of the Circuit Court of Appeals, printed in Appen-

dix A hereto, infra pp. 20a-28a, is reported at 588 F.2d

127 and 100 LRRM 2481.

JURISDICTION

The judgment of the Fifth Circuit Court of Appeals,

printed in Appendix B, infra pp. 28a-29a, was entered on

February 8, 1979. The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. Section 1254(1).

QUESTION PRESENTED

Whether a district court must defer to an arbitrator's

award that is in direct conflict with the clear and unam-

biguous language of a collective bargaining agreement,

when that collective bargaining agreement expressly

forbids the arbitrator from altering its provisions.

STATUTE INVOLVED

The statutory provision involved is Section 301(a) of

the Labor Management Relations Act (LMRA), 61 Stat.

156, 29 U.S.C. Section 185(a). LMRA Section 301(a)

provides as follows:

Suits for violation of contracts between an

employer and a labor organization repre-

senting employees in an industry affecting

commerce as defined in this chapter, or

between any such labor organizations, may be

3

brought in any district court of the United

States having jurisdiction of the parties,

without respect to the amount in controversy

or without regard to the citizenship of the par-

ties.

STATEMENT

In April, 1975 Boise Cascade began a reduction in

force. Certain employees, however, through the exer-

cise of their seniority rights, elected to be downgraded

in classification rather than to be laid off. Accordingly,

they were downgraded, and their rates of pay were

reduced. On April 17, the Steelworkers filed a

grievance protesting the wage reduction of the down-

graded employees.

The dispute was submitted to arbitration pursuant

to Article XIII of the collective bargaining agreement

between Boise Cascade and the Steelworkers. Article

XIII provides, in pertinent part, that “[t]he Arbitrator

shall have jurisdiction and authority to apply, interpret

or determine compliance with the sections of the

Agreement, but may, in no case, add to, subtract from,

or alter in any way, any of the provisions of the sec-

tions.” A hearing was conducted on October 10, 1975.

At the hearing, Boise Cascade contended that the wage

reductions were justified by Appendix A, Section 2A, of

the collective bargaining agreement. Appendix A, Sec-

tion 2A establishes rate retention for employees re-

quired to work at a lower-paying job, prohibits rate

4

retention for employees who voluntarily “bump” down

to a lower-paying job, and permits an employee to goon

layoff in lieu of bumping down:

An employee who is required by the

Employer to work on a job that carries a lower

rate of pay than his regular rate of pay shall

nevertheless continue to be paid at his current

regular rate of pay. This shall not apply when the

employee elects to take such lower rated job through

seniority rights, in which event he shall be paid at the

applicable rate for such job but in no case more than the

base rate thereof.

When an employee is offered, but not re-

quired to work on a lower rated job, instead of

accepting work on such lower rated job, he

may go on layoff, ifthe so desires, until work is

again. available for him on his regular job.

(Emphasis added.)!

In an opinion issued on October 31, 1975, the arbitrator

acknowledged that the above-quoted “contract

language, standing alone, tends to favor the Com-

1 Such provisions are quite common. See, e.g., Bethlehem Steel Corp.,

58 Lab.Arb. 259(BNA 1972) (rate retention for employee involun-

tarily assigned to gee mre job); Longview Fibre Co., 66 Lab.Arb.

1076 (BNA 1976) (employee may voluntarily “bump” down to

lower-paying job); Gimbel Bros., Inc., 63 Lab. Arb. 67 (BNA 1974) (no

rate retention for employee who voluntarily bumps down to lower

paying job); Aeronca, Inc., 68 Lab.Arb. 461 (BNA 1977) (employee

displaced from former job may elect to go layoff rather * Si to

bump down). See also 2 Collective Bargaining-Negotiations and Contracts

60:3 (BNA 1979) (67% of collective bargaining agreements in

manufacturing industries contain bumping provisions).

5

pany’s position.” Finding the language to be am-

biguous, however, he concluded that Appendix A, Sec-

tion 2A, did not permit wage reductions for employees

who elected to be downgraded during a layoff.

On January 21, 1976, Boise Cascade filed an action in

the District Court for the Middle District of Florida,

pursuant to the Labor-Management Relations Act

(LMRA) Section 301(a), 29 U.S.C. Section 185(a)

(hereinafter “Section 301”), seeking to have the ar-

bitrator’s award vacated; the Steelworkers counter-

claimed for enforcement. On December 16, 1976, the

court heard oral argument on cross-motions for sum-

mary judgment. Holding that “[t]he language of the

contract was clear and unambiguous,” and that the ar-

bitrator’s award was in direct conflict with this

language, the court granted Boise Cascade’s motion. A

judgment vacating the award was issued on December

28, 1976.

The court below rejected the district court’s finding

that Appendix A, Section 2A, of the collective bargain-

ing agreement was unambiguous: “The arbitrator's

determinations that the collective bargaining agree-

ment was ambiguous ... cannot be said to have no

foundation in reason or fact.” Accordingly, in a judg-

ment entered on February 8, 1979, it reversed the judg-

ment of the district court.

REASONS FOR GRANTING THE WRIT

The decision below is “certworthy” for any one of

five reasons. First, it ignores the mandate of this Court

6

in Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593

(1960), and, in doing so, deviates from the holdings of

other Circuit Courts of Appeal, who have scrupulously

adhered to Enterprise Wheel. Second, insofar as it

assumes the answer to a question left unresolved by

Enterprise Wheel and its progeny, the decision below

presents a novel issue of law. Third, it presents an issue

concerning the proper working relationship between

federal district courts and courts of appeal in actions

under Section 301. Fourth, it constricts the jurisdiction

of federal district courts. And fifth, it has far-ranging

implications of great importance to many persons

other than the parties to this case; specifically, the deci-

sion below will impede collective bargaining, a result

obviously at odds with all that federal labor law is de-

signed to achieve.

I. In Steelworkers v. Enterprise Wheel & Car Corp., 363

U.S. 593 (1960), this Court stated that

[A]n arbitrator is confined to interpretation

and application of the collective bargaining

agreement... .[H]is award is legitimate only

so long as it draws its essence from the collec-

tive bargaining agreement. When an ar-

bitrator’s words manifest an infidelity to this

obligation, courts have no choice but to refuse

enforcement of the award.

li. at 597. Although the foregoing standard has been

characterized as “enigmatic,” see Abrams, The Integrity of

7

the Arbitral Process, 76 Mich.L.Rev. 231, 260 (1977), most

Circuit Courts of Appeal have shown little hesitation in

interpreting it to mean that an arbitrator's award is un-

enforceable where that award exceeds the arbitrator's

contractual authority. See, e.g., Torrington Co. v. Metal

Products Workers, 362 F.2d 677 (2d Cir. 1966); H. K. Porter

v. United Saw Workers, 333 F.2d 596 (3d Cir. 1964);

Monongahela Power Co. v. Local 2332, IBEW, 566 F.2d 1496

(4th Cir. 1976); Amanda Bent Bolt Co. v. International Union,

U.A.W., 451 F.2d 1277 (6th Cir. 1971); Truck Drivers’ Un-

ion v. Ulry-Talbert Co., 330 F.2d 562 (8th Cir. 1964);

Mistletoe Express Service v. Motor Expressmen’s Union, 566

F.2d 692 (10th Cir. 1977).

The lower courts have particularly agreed that,

where a collective bargaining agreement prohibits an

arbitrator from modifying or adding to the terms of

that agreement, any a\.ard contravening unambiguous

contract provisions is unenforceable:

We are not persuaded that the Supreme

Court. . . intended that the courts should per-

mit.an arbitrator to render decisions which do

such violence to the clear, plain, exact and un-

ambiguous terms of the submission and the

contract of the contending parties.

Textile Workers of America v. American Thread Co., 291 F.2d

894, 899 (4th Cir. 1961). The Second Circuit echoed

this view in Torrington Co. v. Metal Products Workers, supra,

where the contract provided that “[t]he arbitrator shall

8

... have no power to add to. . . or modify, in any way,

any of the provisions of this agreement” (see 362 F.2d at

678 n. 2):

In some cases, it may be [an] appropriate exer-

cise of an arbitrator’s authority to resolve am-

biguities in the scope of a collective bargain-

ing agreement on the basis of prior practice

.... However, ... the mandate that the ar-

bitrator stay within the confines of the collec-

tive bargaining agreement ... requires a

reviewing court to pass upon whether the

agreement authorizes the arbitrator to ex-

pand its express terms on the basis of the par-

ties’ prior practice.

Id. at 680. Similarly, the Third Circuit has held that “the

arbitrator had no ground upon which to base his inter-

pretation of the clear and unambiguous words of the

eligibility clause. Standing by itself, it gave him no

room to construe it in any manner than [sic] according

to its plain meaning.” H. K. Porter Co. v. United Saw

Workers, supra, at 602. See also Mistletoe Express Service v.

Motor Expressmen’s Union, 443 F.Supp. 1, 6 (W.D. Okla.

1976), affd, 566 F.2d 692 (10th Cir. 1977): “[t]he Ar-

bitrator has simply disregarded the express agreement

of the parties. This he has no-authority to do. His

authority is contractual and the agreement provides

that he has no power tochange the provisions thereof.”

9

Consistent with the above decisions, the district

court in the case sub judice held (1) that the controlling

contractual provisions were unambiguous, and (2) that

the arbitrator’s award conflicted with those provisions.

By reversing the district court’s vacation of the ar-

bitrator’s award, the court below deviated sharply from

the principles which were articulated in Enterprise Wheel

and which have been followed in other circuit courts of

appeal.

II. Necessary to the decision below is the assump-

tion that, where an arbitrator determines a contract

provision to be ambiguous, a district court must defer

to that determination in deciding whether the ar-

bitrator has added to or altered the provision in ques-

tion. This is an issue which appears not to have arisen

before. In past cases, the determination of ambiguity vel

non has been made by the district court in the first in-

stance;? in this case, it was first made by the arbitrator.

Whether a district court must defer to an arbitrator's

threshold finding of ambiguity is thus an issue of first

impression, one well-suited for resolution by this

Court.

2 See, e.g., Mistletoe Express Service v. Motor Expressmen’s Union, 443

F.Supp. 1(W.D. Okla. 1976), aff'd, 566 F.2d 692 (10th Cir. 1977). In

that case, Mistletoe Express instituted an action pursuant to Sec-

tion 301 to vacate an arbitrator’s award. In defense of this award,

the union argued that the provision at issue was “ambiguous and

susceptible to construction, and, therefore, the Arbitrator’s deci-

sion [was] final and binding.” 443 F.Supp. at 5. The district court

rejected this argument: “The Court does not believe that an

honest intellect could reach the result that this provision was am-

biguous.” Id. at 6.

10

Il]. Part and parcel of the issue whether district

courts must presume the correctness of an arbitrator's

determination that an ambiguity exists is whether cir-

cuit courts of appeal must presume the correctness of a

district court’s determination than an ambiguity does

not exist. For if deference is warranted in the first in-

stance, then it is unwarranted in the second, and vice

versa. In other words, may an appellate tribunal review

the merits of a district court finding, or is abuse of dis-

cretion the sole ground for reversal? See General

Warehousemen & Helpers Local 767 v. Standard Brands, Inc.,

560 F.2d 700 (Sth Cir. 1977), rev'd on reh. en banc, 579 F.2d

1282 (Sth Cir. 1978):

I think the District Court properly applied

the applicable standard of judicial review in

§301(a) suits for the enforcement of arbitra-

tion awards. The majority opinion ap-

proaches this appeal as if it were a question of

whether we should withhold enforcement of

the award. I believe that the true issue is

whether the District Court abused its discre-

tion when it denied enforcement.

560 F.2d at 708-709 (Coleman, J., dissenting). Theyin-

stant case thus presents for determination a question

involving the proper working relationship of the

federal judiciary.

IV. The decision below effectively limits the review

powers of district courts under Section 301. It has been

11

settled since Enterprise Wheel that district courts are not

empowered to review the merits of an arbitrator’s deci-

sion. But the decision below additionally erodes the dis-

trict courts’ power to determine whether the arbitrator

exceeded the scope of his submission. In terms of its

practical effect, the decision below directly addresses

and reduces the jurisdiction of federal district courts.

V. Parties to a collective bargaining agreement are

entitled to the benefit of their bargain. Where a provi-

sion is susceptible of more than one construction, par-

ties to an agreement providing for arbitration have bar-

gained for the arbitrator’s construction, see Enterprise

Wheel, 363 U.S. at 599 (“[i]t is the arbitrator’s construc-

tion which was bargained for . . .”), and are entitled to

have the courts safeguard that bargain. See Steelworkers v.

American Mfg. Co., 363 U.S. 564 (1960); Steelworkers v.

Warrior & Gulf Navigation Co., 363 U.S. 574 (1960).

Likewise, where the parties have agreed upon unam-

biguous language, and have agreed not to permit the

arbitrator to alter such language, they are entitled to

have the courts safeguard this bargain as well. Cf. Steel-

workers v. Warrior Navigation Co., supra, at 582: “The par-

ties expect that the arbitrator’s judgment will reflect

not only what the contract says but, insofar as the collective

bargaining agreement permits,” other factors as well.

(Emphasis added.) In other words, notwithstanding the

crucial role of the arbitrator in collective bargaining

agreements, Section 301 places upon federal district

courts the primary responsibility of protecting the par-

ties’ bargain.

12 13

By depriving the district court of its ability to judge CONCLUSION

whether or not a provision is ambiguous, the court

below effectively prevented it from assuring the

reliability of clear language. And however important issue in this case.

the gap-filling functions of arbitration may be, it is

equally important that the parties be able to rely on the

express words of a collective bargaining agreement.

For unless a collective bargaining agreement is an in-

strument upon which the parties can rely, then it will,

to that extent, be less worthwhile.

For the foregoing reasons, a writ of certiorari should

Respectfully submitted,

Norman F. Burke, Esquire

VAN DEN BERG, GAY

& BURKE, P.A.

16 South Magnolia Avenue

Consequently, the decision of the court below may

Post Office Box 2193

well lessen the incentive of labor and management to

hammer out agreements allocating rights and duties Orlando, Florida 32802

between them. While this disincentive is hardly likely 305/423-7656

to halt collective bargaining, parties will nevertheless Counsel for Petitioner

be far less willing now to assume that a matter is “set-

tled.” This will result in harder bargaining, longer bar- April

gaining, and, inevitably, more frequent resort to

economic force.

, 1979

Additionally, arbitration clauses will tend to become

narrower in response to what is, in effect, a carte

blanche to arbitral caprice. For if simply reciting that a

provision is ambiguous will justify whatever award

follows, then such recitations are sure to become rou-

tine. Narrower arbitration clauses, of course, will in-

crease the number of disputes subject to resolution by

strikes, lockouts and other self-help measures.

14

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three true copies of the

foregoing Petition for a Writ of Certiorari to the Unit-

ed States Court of Appeals for the Fifth Circuit were

furnished by U.S. Mail this ___ day of April, 1979, to

each of the following:

George C. Longshore, Esq.

Cooper, Mitch & Crawford

409 North 21st Street

Birmingham, Alabama 35203

Thomas J. Pilacek, Esq.

Pilacek & Swindle

Post Office Box 2969

Orlando, Florida 32802

Bernard Kleiman, General Counsel

United Steelworkers of America

Five Gateway Center

Pittsburgh, Pennsylvania 15222

Norman F. Burke

la

| APPENDIX

In the Matter of Arbitration

between

BOISE CASCADE CORPORATION

AND

UNITED STEELWORKERS OF AMERICA

AFL-CIO Local 7001

FMCS Case #75K17190

Appearances:

For the Company:

Thomas Bransford, Industrial Relations Manager

For the Union:

Frances Melancon, Staff Representative

OPINION AND AWARD

A grievance remaining unadjusted after the final

step in the grievance procedure, said grievance was re-

ferred to the undersigned Arbitrator for final and bind-

ing decision. A hearing was conducted October 10,

1975 in Orlando, Florida.

ISSUE

Under appropriate provisions of the Agreement, did

the Company improperly reduce the pay of affected

2a

employees when their jobs were changed during a

period of curtailment?

If so, what should the proper remedy be for

employees so affected.

RELEVANT CONTRACT PROVISIONS

Article X: Seniority:

C. Plant Seniority:

4. In the event of a curtailment,

employees may exercise their plant

seniority to displace the most junior

employee in the plant who fits into the

following categories:

a. Employees with less plant seniority

who hold nonladder jobs that the

bumping employee has held on a

permanent basis.

b. Employees with less plant seniority

who are in the following jobs:

General Laborer

Packer

D. Progression Ladder Seniority is defined

as the length of time an employee is per-

manently assigned to a_ progression

ladder.

3a

3. In the event of a curtailment in the

progression ladder over one (1) day,

employees will be moved down the ladder

into each lower rung to which their

progression ladder seniority places them.

Appendix A: Job Classifications and Wage Rates:

2. A. Anemployee who is required by the

Employer to work on a job that carries a

lower rate of pay than his regular rate of

pay shall nevertheless continue to be paid

at his current regular rate of pay. This

shall not apply when the employee elects

to take such lower rated job through

seniority rights, in which event, he shall

be paid at the applicable rate for such job

but in no case at more than the base rate

thereof.

When an employee is offered, but not

required to work on a lower rated job, in-

stead of accepting work on such lower

rated job, he may go on layoff, if he so

desires, until work is again available for

him on his regular job.

D. If an employee is reduced to a lower

rated job and is subsequently assigned to

a higher rated job he has previously held,

he shall not be required to repeat his

4a

training period, but shall immediately

receive the rate of pay he had previously

attained for such job.

4. Nothing contained in this Appendix A

shall diminish the regular hourly rate of

any individual employee on the payroll as

of the effective date of this Agreement.

That is, any employee whose current rate

exceeds the job rate shall continue to be

paid his current rate.

FACTS

Opening Statement on Behalf of Employer:

Boise Cascade’s Composite Can Plant locat-

ed in Orlando, Florida is engaged in the

manufacture of composite cans and the ends

for those cans. The preponderance of the

product mix is in frozen juice concentrate

cans, with the balance in motor oil and other

products. To manufacture these cans, the

plant has eight can lines in different can sizes

and constructions. In addition, the end

manufacture requires an extensive metal

processing operation.

The frozen juice concentrate business is

highly seasonal in nature. At peak periods, all

can lines and support equipment is running.

5a

At low points, when business is curtailed

much of the equipment is idle and workforce

realignment becomes necessary. The Orlando

workforce thus fluctuates from approximate-

ly 350 empioyees during full production down

to some 200 during slack periods. These

employees work in 25 distinct classifications,

all with unique job duties and contractual

rates of pay.

At such periods of time when workloads are

curtailed, crewing is reduced in accordance

with the number of lines to be run, job

reassignments are made in line with skills and

seniority, and management makes those

decisions necessary to man the plant effective-

ly and efficiently.

- On the occasion which gave rise to the instant

grievance, crew sizes were reduced and employees re-

assigned. However, wage rates were also reduced. This

reduction in wage rates, the grievants contend, is im-

proper according to contractual standards.

ARGUMENTS OF THE PARTIES

The Union presents several arguments tending to

prove that the rate reductions, here involved, con-

stitute a violation of the Labor Agreement. First, it

relies on the language in Appendix A which it claims

clearly precludes such rate reductions. Secondly, it

6a

points to “past practice” which conforms with the Un-

ion’s interpretation of Appendix A. Third, it is claimed

there was no waiver of the employees rights, either

contractually or by any actions of responsible Union

representatives. Fourth, it calls attention to Section 4

of Appendix A which appears to reinforce the Union’s

argument that the Company had no right to reduce

wage rates. Fifth, it points to the language in the

minutes of the November 5, 1974 meeting and con-

tends that the announcement of future wage rate reduction

was a “feeler” or “trial balloon” to see how the Union

would react to such announcement. Hence, it is fur-

ther evidence that the Company was attempting to

retract what past practice and contract language had

established. Sixth, the Union acknowledges that the

Company had certain needs in the years when the sup-

ply of labor was short, and that it has different needs at

the present time. However, it contends, there are other

solutions to these problems without the Company’s

unilaterally withdrawing rights previously given to

employees. Seventh, it focuses on the words “lower

rated job” and explains that this term does not neces-

- sarily refer to a job having a lower rate of pay, but re-

fers, instead, to a job which employees progress

through and look back on as a step in a progression. In

other words, the term “lower rated job” does not carry

the implication which the Company attributes to it.

Eighth, and finally, the Union explains that the ref-

erence to employee’s “electing to take lower rated jobs

through seniority rights” existed in the 1968 contract to

cover situations involving “down-bumping” in

7a

situations unrelated to lay off procedures. Hence, the

second sentence in Section 2A is not relevant to the in-

stant case.

In its argument, the Company conceded that Appen-

dix A, Section 2A appears to support the Union’s posi-

tion if the reader stops after the first sentence.

However, the second sentence quickly changes the

original impression and clearly establishes that there

are two contractually proper methods for affecting a

reduction-in-force. The first way involves Management's

assigning the employee to a lower rated job, in which

case he is entitled to his regular rate of pay. The second

method permits the employee to exercise his seniority

rights and demand the highest job which his seniority

permits. In this case, the Company is obligated to pay

only the actual rate of his lower rated job.

To support its argument that a rate reduction is an-

ticipated by and provided for in the contract, the Com-

pany points to Section D. This Section, while not

directly applicable to the instant case, tends to prove

that rate reductions are not entirely excluded but are

actually anticipated in particular situations.

With regard to the Union’s reference to Section 4 of

Appendix A, the Company contends that this provision

is clearly irrelevant. Indeed, it is no more than a typical

“Red Circle” provision stating that employees who

might unintentionally be harmed by certain new con-

tract language will be protected froma rate reduction.

Responding to the Union’s assertion of rights due to

“Past Practice” the Company admonishes the Ar-

8a

bitrator that clear contract language, such as is found in

Section 2A, must prevail over practice which is con-

trary to the intent of such contract language.

Finally, the Arbitrator is asked to consider the com-

pelling reasons which prompted the Company’s lay-off

policies in the years when labor was scarce and the

economic changes subsequent to those years. Accor-

dingly, it was argued, the Arbitrator should interpret

the Contract in the light of the problems which the par-

ties anticipated and sought to solve.

DISCUSSION AND OPINION

Ironically, both the Company and the Union insisted

that the contract language was so clear and unam-

biguous that there was neither need nor justification

for the Arbitrator’s admitting into evidence testimony

or documents to explain it. According tothe Company,

the second sentence in Section 2A of Appendix A, clear-

ly refers to a lay-off procedure wherein the Company per-

mits an employee to choose between a down-bump and

lay-off. However, the Union contends that this

sentence refers to another form of down-bump, one

which is unrelated to lay-off procedures. In the Ar-

bitrator’s opinion, the relevant contract language can

be interpreted to support either position. Hence, it

must be regarded as ambiguous and in need of clarifica-

tion by whatever evidence is available.

When dealing with contract language that is subject

to two or more interpretations the Arbitrator is not

free simply to select the one which satisfies his sense of

9a

justice and equity. He is obligated to refer to certain

standards or guidelines which are accepted both in

courts of law and arbitration. According to these stan-

dards, the Arbitrator must consider, first, how the dis-

puted language came into the contract, that is, what

problem it was designed to solve. According to the

Company, the first and third sentences in Section 2A

were intended as a mutually beneficial trade-off

designed to solve the Company’s loss of trained per-

sonnel during the summer slack period. To explain, the

first sentence assures employees that their rates will

not be cut if they are placed on lower skilled jobs. The

trade-off is, employees so privileged, by rate retention,

may not take a lay-off in lieu of such demotion. The sec-

ond sentence, according to the Company, was includ-

ed to give the Company an alternative procedure in lay-

off, one that would permit it to cut rates if it did not fear

loosing such employees.

Certainly the Company’s explanation of this second

sentence in Section 2A is logical. It purports todo what

any Management would wish to do — safeguard its

rights and provide maximum flexibility. However, this

sentence can also be interpreted as unrelated to lay-offs

and applicable only to voluntary, one time, down-

bumps. Such down-bumps, according to the Union’s

testimony, were a concern of the parties both in 1968

and during the 1974 negotiations.

What can be learned from this inquiry into the ap-

parent motives behind the contract language? The an-

swer is, very little can be learned. Indeed, it appears

that each of the parties entered negotiations with its

10a

own understanding of the disputed contract language

and in the absence of a thorough airing of the problem,

concluded negotiations with the same misunder-

standing.

When the parties to a contract fail to discover and

remedy an ambiguous provision, how can the Ar-

bitrator assign a proper interpretation?

The answer is, he must consider all information

which was available to the parties when the most re-

cent contract was consummated and determine, based

upon such information, which party had a more valid

reason for its interpretation. Or, conversely, which

party, by its actions or inactions, could be viewed as

more responsible for the misunderstanding.

In its argument, the Company sought to

demonstrate that the Union should have known of the

Company’s interpretation because prior to the most re-

cent contract negotiation several employees had ac-

tually had their rates cut at time of lay off. Moreover,

the Company argued the Union’s failure to protest

such rate cuts tends to prove that the Company’s lay-

off procedure was accepted by the Union as proper.

Obviously, this evidence of actual rate cuts is rele-

vant and quite persuasive. However, in the Arbitrator’s

opinion, it falls short of being decisive. As the Union

correctly pointed out, the Company produced only

about a dozen instances covering six years wherein

rates were cut. Moreover, there is no evidence that

these cases were ever brought to the attention of the

Union. Nor, is it even clear that the employees

lla

themselves were aware of the rate cuts because fre-

quently paychecks were almost impossible to calculate

due tothe irregularity and amount of weekly overtime.

The Union, on the other hand, entered the 1974 con-

tract negotiation with several valid reasons for its

understanding of the disputed contract language. In

the first place, in all the years that the disputed

language had been in the contracts, 1968-1974, the

Company had always (with the exception of the few in-

stances previously mentioned) followed the same

procedure. That procedure involved a notice to the

employee to report toa lower skilled job at no reduction

in pay.

In all the evidence presented, there is no indication

that the Company ever called either the Union’s or any

employee’s attention to the Company’s interpretation.

That is, at the time of lay-offs, which occurred every

summer, employees were never advised of their rights

or that the Company could have utilized a different

procedure. Nor did the Company have different forms,

or designations on personnel cards, indicating a two

track lay-off procedure. Indeed, rather than being

treated as a matter of personnel policy, which is sup-

posed to motivate employees and build morale, the two

track lay-off procedure was treated like one of the

Company’s most guarded secrets.

Under these circumstances, it is quite believable that

the Union entered the 1974 negotiations with complete

confidence that the existing contract language provid-

ed an absolute guarantee of rate retention. And, the

12a

second sentence in Section 2A, which permits rate

reduction, understandably caused the Union no con-

cern because it seemed to apply to a letter of under-

standing which was worked out at the same negotia-

tion. The details of this letter of understanding, which

became a part of the contract, is set out below:

It is understood and agreed by the signatory parties

that:

1. On a one-time only basis, employees

other than those exceptions already

provided for in Article X, Section K, will

be allowed to bid to a job which has the

same or a lower pay rate.

2. Employees will be allowed to do so under

the following conditions:

a. They must indicate their desire to

down-bid or lateral bid in writing no

later than December 1, 1974.

b. Such down-bidding or lateral bidding

will be allowed to take place only

when a permanent vacancy occurs in

the classification for which the

employee has so indicated his interest

within the period.

3. Employees will be allowed to express their

desire to down bid or lateral bid only to

jobs which they have held on a permanent

basis or to general laborer and packer jobs.

13a

4. Employees whoarecurrently in the ladder

will be allowed to bid to a lower job in the

ladder but will be restricted to down bid-

ding to only the lowest job in the ladder.

Another point raised by the Company is deserving of

comment. This is its reference to Paragraph D which

anticipates rate reductions under different circum-

stances. In the Arbitrator’s opinion, this argument was

adequately answered by the Union’s acknowl-

edgement that certain jobs, especially in maintenance,

have presented opportunities for rate reduction.

Hence, Paragraph D was not regarded as related to lay-

off procedures, but to such jobs wherein rate reduc-

tions were acknowledged to be proper and actually had

occurred.

In conclusion, the Arbitrator wishes to acknowledge

that the present case is borderline and in many respects

most unusual. That is, the Arbitrator is of the opinion

that the contract language, standing alone, tends to

favor the Company’s position. Indeed, if the disputed

contract provision had been called into question im-

mediately after the 1968 contract was signed, this Ar-

bitrator probably would have declared it to be

somewhat unclear but nevertheless regarded the Com-

pany’s interpretation as the more tenable. However, by

1974 the Company had conducted its affairs in a

manner which gave a different meaning to the same

contract language. For example, employees were

routinely notified to report to lower skilled jobs in

periods of lay-off and their higher rates were retained.

Conversely, they were never told that the Company

could have cut rates but it chose not to on this occasion.

14a

When the parties entered negotiations for the 1974

contract the Company never called attention to its

alleged right to cut rates even though it could have an-

ticipated occasions in the near future when such rate

cuts would be advantageous. Moreover, it should have

realized that the Union believed rate retention was

protected by the present contract language. Indeed, it is

even probable that the Company knew or.-strongly

suspected the Union’s interpretation differed from the

Company’s or else why did the Company raise this

issue at a meeting with the Union only 5 days after the

1974 contract was signed? Finally, removing the lay-off

provision from the Seniority Section and placing it in

the Appendix could have further misled the Union

because the Appendix is a hodgepodge of afterthoughts

and difficult to interpret in any context.

AWARD

For the reasons described herein the grievance is

sustained.

SIGNED

Is} JAMES J. SHERMAN

James J. Sherman,

Arbitrator

seme nt

ee ee pe eS 8

a .

15a

DATED:

STATE OF FLORIDA

COUNTY OF HILLSBOROUGH

CITY OF TAMPA

On this 31st day of October, 1975, before me per-

sonally appeared James J. Sherman to me known and

known to me to be the person described in and who ex-

ecuted the foregoing instrument and he duly acknowl-

edged to me that he executed the same.

ls) BETTY JO JOHNSON

Notary Public

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO. 76-25-ORL-CIV-R

BOISE CASCADE CORPORATION, etc.,

Plaintiff,

versus

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, LOCAL UNION NO. 7001,

Defendant.

16a

OPINION AND ORDER

ON MOTIONS FOR SUMMARY JUDGMENT

This is an action by the Plaintiff Boise Cascade Cor-

poration to set aside an arbitration award rendered in

October, 1975, pursuant to the arbitration provisions

of acollective bargaining agreement between the Plain-

tiff and the Defendant United Steelworkers of

America, AFL-CIO, Local Union No. 7001. Jurisdiction

of this Court is invoked pursuant to Section 301(a) of

the Labor Management Relations Act, 29 U.S.C.A.

§185(w). The question of whether the award is en-

forceable is brought to issue as a result of cross motions

for summary judgment filed by each party. There are

no material questions of fact.

The proper role for a court in reviewing an ar-

bitrator’s interpretation of the provisions of a collective

bargaining agreement has been decided in numerous

court decisions. These follow from court application of

the standard established in the decision of the United

States Supreme Court in 1960 in United States of America

v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). This

case admonishes arbitrators that their authority is not

unlimited and is subject to court review:

“.. . Nevertheless, an arbitrator is confined to

interpretation and application of the collective

bargaining agreement; he does not sit to dis-

pense his own brand of industrial justice. He

may of course look for guidance from many

17a

sources, yet his award is legitimate only so

long as it draws its essence from the collective

bargaining agreement. When the arbitrator's

words manifest an infidelity to this obligation, courts

have no choice but to refuse enforcement of the award.”

(Emphasis added.) 393 U.S. at 597 (80 S.Ct. at

1361.)

In reviewing the award, this Court finds and con-

cludes that the arbitrator exceeded his authority and

did not reach his conclusion from the “essence of the

collective bargaining agreement.” In concluding that

the grievance of the union was sustained, he necessari-

ly concluded that the collective bargaining agreement

provided for rate retention in the context of lay-offs.

His conclusion was in direct conflict with the

provisions of the agreement. The language of the con-

tract was clear and unambiguous. See Atlantic Lines, Ltd.

v. Narwhal, Ltd., 514 F.2d 726, 730 (Sth Cir. 1975). Since

the arbitrator’s decision was contrary to the terms of

the collective bargaining agreement, it must be set

aside. See Amanda Bent Bolt Co. v. Auto Workers, 451 F.2d

1277 (6th Cir. 1971).

For the foregoing reasons, the Court concludes that

there is no genuine issue as to any material fact, the

award should not be enforced, and the Plaintiff is en-

titled to a judgment as a matter of law. It is, therefore,

ORDERED that the motion of Plaintiff Boise

Cascade Corporation for summary judgment is hereby

18a

granted, and the motion of Defendant United

Steelworkers of America, AFL-CIO, Local Union No.

7001, for summary judgment is hereby denied.

FURTHER ORDERED that the Clerk shall enter

judgment for Plaintiff pursuant to Rule 58, Fed. R. Civ.

P.

DONE AND ORDERED in Chambers at Orlando,

Florida, this 23rd day of December, 1976.

Is} JOHN A. REED, JR.

: Judge

Copies mailed to:

Norman F. Burke, Esquire

van den Berg, Gay & Burke, P.A.

Post Office Box 793

Orlando, Florida 32802

George C. Longshore, Esquire

Cooper, Mitch & Crawford

409 North 21st Street

Birmingham, Alabama 35203

Thomas J. Pilacek, Esquire

Bowles & Pilacek

Post Office Box 2969

Orlando, Florida 32802

19a

FINAL JUDGMENT

(Number and Title Omitted)

Filed: Dec. 26, 1976

The Court having granted plaintiff’s motion for

summary judgment and denied that of defendant, it is

ORDERED AND ADJUDGED: (1) The arbitration

award which is the subject of this action is not en-

forceable and, therefore, vacated;

(2) The defendant shall have and take nothing by

its counterclaim;

(3) Costs, if any, shall be taxed in accordance with

law and the Federal Rules of Civil Procedure.

DONE AND ORDERED at Orlando, Florida, this

28th day of December, 1976.

Is) JOHN A. REED, JR.

UNITED STATES DISTRICT

JUDGE

Copies mailed to:

Norman F. Burke, Esq.

van den Berg, Gay & Burke, P.A.

Post Office Box 793

Orlando, Florida 32802

20a

George C. Longshore, Esq.

Cooper, Mitch & Crawford

409 North 21st Street

Birmingham, Alabama 35203

Thomas J. Pilacek, Esq.

Bowles & Pilacek

Post Office Box 2969

Orlando, Florida 32802

BOISE CASCADE CORPORATION, etc.,

Plaintiff-Appellee,

versus

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, LOCAL UNION NO. 7001,

Defendant-Appellant.

No. 77-1392.

United States Court of Appeals,

Fifth Circuit.

Jan. 17, 1979.

Appeal from the United States District Court for the

Middle District of Florida.

—T

2la

Before WISDOM, AINSWORTH and CLARK, Cir-

cuit Judges.

WISDOM, Circuit Judge:

The United Steelworkers of America (the union)

appeals the district court’s order vacating an ar-

bitrator’s award. We agree with the union that the dis-

trict court’s order exceeded the proper scope of judicial

review of labor arbitration awards. Accordingly, we

reverse.

Boise Cascade Corporation (the employer) operates a

plant in Orlando, Florida, in which it manufactures

cans. The employer and the union entered into a collec-

tive bargaining agreement for this plant. Article XIII of

that agreement provided for binding arbitration of

grievances. In part, it stated:

The Arbitrator shall have jurisdiction and

authority to apply, interpret, or determine

compliance with the sections of the Agree-

ment but may, in nocase, add to, detract from,

or alter in any way, any of the provisions of

the sections. Decisions of the Arbitrator shall

be final and binding on the Union, the

Employer, and the employee.

On April 17, 1975, the union filed a grievance com-

plaining that the employer had paid reduced hourly

wages to certain employees who had elected to accept

22a

temporary jobs with lower paying classifications rather

than be temporarily laid off. The union asserted that,

by reducing the wages paid to these workers, the

employer had violated Appendix A of the collective

bargaining agreement. The relevant portions of

Appendix A provide as follows:

2. A. An employee who is required by the

Employer to work on a job that carries a lower

rate of pay than his regular rate of pay shall

nevertheless continue to be paid at his current

regular rate of pay. This shall not apply when the

employee elects to take such lower rated job through

seniority rights, in which event, he shall be paid at the

applicable rate for such job but in no case more than the

base rate thereof.

When an employee is offered, but not re-

quired to work on a lower rated job, instead of

accepting work on such lower rated job, he

may go on layoff, if he so desires, until work is

again available for him on his regular job.

D. If an employee is reduced to a lower

rated job and is subsequently assigned to a

higher rated job he has previously held, he

shall not be required to repeat his training

period, but shall immediately receive the rate

ot pay he had previously attained for such job.

(Emphasis added). :

23a

In the hearing before the arbitrator, both the union

and the employer argued that Appendix A clearly and

unequivocally supported their respective positions.

The arbitrator determined, however, that Appendix A

was ambiguous. The arbitrator then examined

evidence extrinsic to the agreement to aid his construc-

tion of Appendix A. He concluded that the employer's

past practices supported the union’s argument that the

italicized sentence in Appendix A that is quoted above

applied only when an employee not faced with a layoff

voluntarily elected to take alower-paying job“through

seniority rights”.

The employer filed this action to set aside the ar-

bitrator’s award. The district court granted the

employer’s motion for a summary judgment to vacate

the award because the court found that the arbitrator’s

order exceeded his authority and did not draw its es-

sence from the collective bargaining agreement. The

court believed that the language in Appendix A clearly

and unambiguously provided that an employee would

not retain his hourly wage rate when he chose to accept

a lower-paying job temporarily rather than be laid off.

The scope of the judicial review of arbitration awards

_ is limited. The Supreme Court’s seminal decisions on

this issue are the Steelworkers Trilogy: Steelworkers v.

American Manufacturing Co., 1960, 363 U.S. 564, 80 S.Ct.

1343, 4 L.Ed.2d 1403; Steelworkers v. Warrior & Gulf

Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4

L.Ed.2d 1409; Steelworkers v. Enterprise Wheel & Car Corp.,

24a

1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. The

Court in Enterprise Wheel held that

the question of interpretation of the collective

bargaining agreement is a question for the ar-

bitrator. It is the arbitrator’s construction

which was bargained for; and so far as the ar-

bitrator’s decision concerns construction of

the contract, the courts have no business

overruling him because their interpretation of

the contract is different from his.

363 U.S. at 599, 80S.Ct. at 1362. Similarly, the Court in

Warrior & Gulf stated that “judicial inquiry . . . must be

strictly confined to the question whether the reluctant

party did agree to arbitrate the grievance or did agree to

give the arbitrator the power to make the award he

made”. 363 U.S. at 582, 80 S.Ct. at 1353.

The premise of the Steelworkers Trilogy is that the court

should allow the parties to a collective bargaining

agreement containing a binding arbitration clause to

receive the benefit of the bargain — binding arbitration

on contract disputes. Professor St. Antoine recog-

nized the soundness of this doctrine when he wrote:

Put most simply, the arbitrator is the par-

ties’ officially designated “reader” of the con-

tract. He (or she) is their joint alter ego for the

purpose of striking whatever supplementary

bargain is necessary to handle the anticipated

unanticipated omissions of the initial agree-

a

25a

ment. Thus, a “misinterpretation” or “gross

mistake” by the arbitrator becomes a con-

tradiction in terms. In the absence of fraud or

an overreaching of authority on the part of

the arbitrator, he is speaking for the parties,

and his award is their contract.

St. Antoine, Judicial Review of Labor Arbitration Awards: A

Second Look at Enterprise Wheel and Its Progeny, 75

Mich.L.Rev. 1137, 1140 (1977). This Court has follow-

ed this doctrine time and again. In Safeway Stores v. Bakery

Workers Local 111, 5 Cir. 1968, 390 F.2d 79, 83-84, we

stated that any “likelihood [of an ‘unpalatable’ arbitral

award] is the by-product of aconsensually adopted con-

tract arrangement... . The arbiter was chosen to be

the Judge. The Judge has spoken. There it ends.” See,

e.g., Electrical Workers Local 1000 v. Markle Manufacturing

Co., 5 Cir. 1978, 582 F.2d 9, 11 (per curiam) (citing

cases).

The courts have fashioned few exceptions to the

finality of arbitration awards.! In Enterprise Wheel, the

Supreme Court stated that the arbitration award “is

legitimate only so long as it draws its essence from the

collective bargaining agreement”. 363 U.S. at 597, 80

S.Ct. at 1361. This Court has interpreted this limita-

tion as calling for vacation of an arbitrator’s award only

when it is “without foundation in reason or fact”.

Machinists District No. 145 v. Modern Air Transport, Inc., 5

1 For a general discussion of these exceptions, see St. Antoine,

supra, 75 Mich.L.Rev. at 1150-60.

26a

Cir. 1974, 495 F.2d 1241, 1244, cert. denied, 419 U.S.

1050, 95 S.Ct. 626, 42 L.Ed.2d 644. These standards re-

quire us to conclude that the district court erred when

it vacated the arbitration award attacked by the

employer. The arbitrator’s determinations that the

collective bargaining agreement was ambiguous and

that extrinsic evidence favored the union’s position

cannot be said to have no foundation in reason or fact.

His award, then, passes muster under the Steelworkers

Trilogy and Modern Air Transport.2

The employer argues that, when the arbitrator con-

sidered extrinsic evidence in formulating his construc-

2 This case is distinguishable from Communication Workers v.

Western Electric Co., 1975, N.D.Ga., 397 F.Supp. 1318, aff'd, 5 Cir.

1977, 558 F.2d 816 (per curiarn). In that case, the employer had

suspended an employee who had been arrested. When the crim-

inal charges were dismissed, the employer reinstated the

employee without backpay. The employee filed a grievance under

the collective bargaining agreement, which expressly provided

that the arbitrator’s authority was “limited to a determination of

whether or not the Company has acted unreasonably in suspend-

ing .. . such Employee”. Under the agreement, an employee who

had been unreasonably suspended automatically received

backpay. The arbitrator determined that the employer had acted

reasonably when it suspended the employee but had acted un-

reasonably when it denied him backpay upon reinstatement.

Accordingly, the arbitrator awarded backpay to the employee. The

district court refused to enforce this award, holding that the ar-

bitrator had exceeded his authority under the agreement.

Western Electric is consistent with the doctrine that courts will en-

force clear contractual limitations on the authority of the ar-

bitrator. See Steelworkers v. Warrior & Gulf Navigation Co., 1960, 363

U.S. 574, 585, 80 S.Ct. 1347, 4 L.Ed.2d 1409; Electrical Workers Local

278 v. Jetero Corp., 5 Cir. 1974, 496 F.2d 661. In contrast, the

employer in this case does not argue that the collective bargaining |

agreement barred the arbitrator from deciding the issue in dis-

pute. Rather, the employer simply asserts that the arbitrator mis-

read the agreement and decided the issue incorrectly.

———

pe

27a

tion of the ambiguity he saw in the collective bargain-

ing agreement, he violated the agreement’s require-

ment that he not “add to, detract from, or alter in any

way” any provision of that contract. We disagree. An

arbitrator faced with the task of interpreting an

arguably ambiguous contract provision may look to ex-

trinsic evidence for assistance. The Supreme Court in

Warrior & Gulf stated:

The labor arbitrator’s source of law is not

confined to the express provisions of the con-

tract, as the industrial common law — the

practices of the industry and the shop — is

equally a part of the collective bargaining

agreement although not expressed in it.

363 U.S. at 581-82, 80 S.Ct. at 1352. The “no additions

or alterations” clause must not be read as precluding an

arbitrator from considering extrinsic evidence to ex-

plain an agreement that may rationally be considered

ambiguous. A contrary result would allow that clause

to override the parties’ express desire to provide for

“final and binding” arbitration. See Piggly Wiggly

Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’

Warehouse Indep. Truck Drivers Union, Local No. 1, 1977,

W.D.La., 438 F.Supp. 164, 168.3

REVERSED.

3 Professor St. Antoine agrees:

The difficulty is that any time a court is incensed

enough with an arbitrator’s reading of the contract and

such supplementary data as past practice, bargaining

history, and the “common law of the shop,” it is simplicity

28a

itself to conclude that the arbitrator must have “added to

or altered” the collective bargaining agreement. How else

can one explain this abomination of aconstruction? Yet if

the courts are to remain faithful to the injunction of Enter-

prise Wheel, they must recognize that most arbitral

aberrations are merely the product of fallible minds, not

of overreaching power. At bottom, there is an inherent

tension (if not inconsistency) between the “final and

binding” arbitration clause and the “no additions or

modifications” provision. The arbitrator cannot be effec-

tive as the parties’ surrogate for giving shape to their

necessarily amorphous contract unless he is allowed to

fill the inevitable lacunae.

75 Mich.L.Rev. at 1153 (footnote omitted).

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 19

No. 77-1392

D.C. Docket No. CA 76-25-ORL-CIV-R

BOISE CASCADE CORPORATION, ETC.,

Plaintiff-Appellee,

versus

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, LOCAL UNION NO. 7001,

Defendant-Appellant.

29a

Appeal from the United States District Court for the

Middle District of Florida

Before WISDOM, AINSWORTH and CLARK, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

the Middle District of Florida, and was argued by

counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order of

the District Court appealed from, in this cause be, and

the same is hereby, reversed;

It is further ordered that the plaintiff-appellee pay to

the defendant-appellant the costs on appeal, to be taxed

by the Clerk of this Court.

January 17, 1979

Issued As Mandate: FEB. 8, 1979