Petition — International Ass'n of Machinists & Aerospace Workers, Lodge No. 82 v. Detroit Coil Co.

IN THE SUPREME COURT OF THE UNI

October Term, 1979

No. +i,

INTERNATIONAL ASSOCIATION OF MACHINISTS &

AEROSPACE WORKERS, LODGE #82, Petitioner,

@y=

DETROIT COIL COMPANY

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JEROME G. QUINN (P-19156)

LAW OFFICES OF SMITH & QUINN

2441 West Grand Boulevard

Detroit, Michigan 48208

(313) 898-1666

: ; a

Robert A. Rosenberg, Esq.

1655 City National Bank Bld¢@.

Detroit, MI 48226

INDEX

Opinions Below... eeeeeeeeeeeeeeeeeeeeeeeeeeeee

SUREGRROCIGRc coccececesevcoesenceséseeesesesoes

Quest ions Presented. eeeeeeeeeeeeeeeeeeeeeeeee

Statement of the GROSccccceocoeecesoeeoseesooe

Reasons for Granting Writ..cccccccccecccccess

COBSLESLGRe cocccesosocceeeuevecesececessesese

Appendix PYRPYTTTITITITITITIT COULD PP Pe eee

Opinion of the United States

Court of Appeals for the Sixth

Circuit, March 21, ,

Order entered by United States

District Court, Eastern District

of Michigan, Southern Division,

December 6, 1976.cccscccccccscccccccccces

Arbitrator's Award, July 20, 1976.......

Table of CaSOScccccccecesocoeecoocecesceseses

14

30

32

47

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 77-1144

INTERNATIONAL ASSOCIATION OF MACHINISTS &

AEROSPACE WORKERS, LODGE #82, Petitioner

-—~

DETROIT COIL COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United

States:

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, LODGE #82, the petitioner

herein, prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Sixth Circuit entered in the

above-entitled case on March 21, 1979.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Sixth Circuit is reported at 594

F2d 575 (6th Cir 1979) and is printed in Appendix A

hereto, infra, page 14. The Order of the United

States District Court, Eastern District of

Michigan, Southern Division, entered on December

28, 1976, is unreported and is printed in Appendix

A hereto, infra, page 30. The Arbitration Award

entered on July 20, 1976, is unreported and is

printed in Appendix A hereto, infra, page 32.

JURISDICTION Machinists and Aerospace Workers, Lodge #82 (the

The judgment of the United States Court of Union) over a procedural prerequisite to the

Appeals for the Sixth Circuit (Appendix A, infra, arbitration of a grievance. The merits of the

page 14) was entered on March 21, 1979. The grievance are immaterial to this appeal.

. jurisdiction of the Supreme Court is invoked °

pursuant to 28 USC Sec. 1254(1).

QUESTIONS PRESENTED

The parties agreed to submit to arbitration

the question of whether the procedural requirements

of the collective bargaining agreement had been

Whether, in a labor dispute, the decision of met. The Detroit Coil Company's position was that

an arbitrator is subject to review, so long as the neither it nor the American Arbitration Association

decision was based upon a construction of the had received notice of the Union's intention to

contract and the manner in which the contract had arbitrate the grievance in the eight (8) day

been interpreted and applied by the parties in the notification requirement set forth in Article V,

past.

’ STATUTORY PROVISIONS INVOLVED -

Jurisdiction for the United States District

Sec. 1(d) of the Collective Bargaining Agreement.

The Union's position was that both the Company and

the Union had been late in administering the steps

: Court to vacate the Labor Arbitration Award was : of the grievance procedure in the past, and in this

invoked by the Detroit Coil Company pursuant to 9

USC Sec. 10(d) which states as follows:

(d) Where the arbitrators exceeded

their powers, or so imperfectly exe-

cuted them that a mutual, final, and The relevant text of the grievance procedure

definite award upon the subject matter

submitted was not made.

case in particular, however, neither party had ever

used this excuse to deny a grievance. The notice

was eleven (11) days late.

states as follows:

Article V

Grievance Procedure

STATEMENT OF THE CASE

i The operative facts necessary for the pied a eesagy Toy pg adjustment of grievance

resolution of this matter are as follows. A

(a) The employee shall endeavor to adjust

his grievance with the foreman and steward.

4 (Company) and the International Association of : If no satisfactory settlement is reached

dispute arose between Detroit Coil Company

==

within 24 hours, the grievance

shall be placed in writing and

referred to:

(b) Chief Steward and Plant Manager.

If still unsettled within 48 hours, the

matter shall be referred to:

(c) 1. Committee of the Union, Union

officials and officials of the Company.

Should the grievance not then be settled

satisfactorily, the case shall be referred

to the American Arbitration Association

for the selection of an impartial arbi-

trator. Matters properly referred shall

be decided by the arbitrator and shall be

binding upon both parties to this Agree-

ment. The fees and expenses of the

arbitrator shall be borne equally by both

parties. It is mutually agreed that when-

ever possible, the AAA Expididted Arbitra-

tion procedure shall be ~ed to process

grievances.

(c) 2. The committee, as referred to

above, shall consist of the Chief Steward,

the Departmental Steward and an authorized

representative of top management. This

paragraph shall not preclude either party

from calling in witnesses at the proper

steps during the grievance procedure.

(d) Unless the American Arbitration Asso-

ciation and the Company is notified within

eight (8) working days from the date which

last the Local Lodge meets to select an

impartial arbitrator, the grievance or

grievances shall be considered settled.

The arbitrator's award found that a “shop

practice” existed within the grievance procedure to

not deny the full run of the grievance procedure

solely due to technical time requirements. (See

full text of opinion - Appendix A). Therefore he

concluded the grievance should be heard on the

merits. The Company petitioned the District Court

to vacate this award. The District Court denied

the application to vacate the award, and the

company appealed.

The Sixth Circuit Court of Appeals reversed,

basing its decision on a determination that the

award of the arbitrator was contrary to the

explicit terms of the agreement and was beyond the

scope of his authority. The case was remanded with

directions to set aside the award of the

arbitrator.

- REASONS FOR GRANTING WRIT

BASIS FOR FEDERAL JURISDICTION

The Company petitioned the District Court to

vacate the award of the labor arbitrator under 29

USC Sec. 185 and 9 USC Sec. 10(d) on the ground

that the arbitrator exceeded his authority under

the agreement by ignoring its express terms in his

determination.

CERTIORARI SHOULD BE GRANTED WHEN A CIRCUIT HAS

DECIDED A FEDERAL QUESTION IN A WAY IN CONFLICT

WITH APPLICABLE DECISIONS OF THE UNITED STATES

SUPREME COURT.

In 1964, this Court in a unanimous opinion

affirmed that the arbitrator in a labor dispute,

not the court, was the appropriate person to decide

whether the procedural prerequisites conditioning,

under a labor agreement, the duty to arbitrate, had

been met. John Wiley & Sons v Livingston, 376 US

543, 11 L Ed 2d 898, 84 S Ct 909 (1964). This

decision recognized the importance of arbitration

in the national labor policy of this industrialized

country.

Wiley dealt with the effect of a subsequent

merger on an arbitration clause in a bargaining

agreement and certain questions of “procedural

arbitrability.” The company argued on the latter

issue that since the first two steps of the

grievance procedure were not carried out, and since

the duty to arbitrate arose only at step 3, it had

no duty to arbitrate. The company argued that

whether procedural conditions in a grievance

procedure to arbitrate had been met must be decided

by a court and not by the arbitrator. The union in

the case argued just the contrary--that the deci-

sion whether procedural conditions to arbitrate had

been met must be decided by an arbitrator and not

by the court. This Court strongly affirmed that

-6-

the decision belonged to the arbitrator, not the

court.

In doing so this Court noted that to submit

the question of whether a procedure to arbitrate

had been met to a court would entail the very delay

attendent upon judicial proceedings preliminary to

arbitration that the arbitration procedure sought

to overcome. In rendering its decision, this

court stated:

[S]uch delay may entirely eliminate the

prospect of a speedy arbitrated settlement

of the dispute, to the disadvantage of the

parties (who, in addition, will have to

bear increased costs) and contrary to the

aims of national labor policy. Id., 376 US

at 558, 11 L Ed 2d at 909, 84 S Ct at 919.

The decision concluded by a note that a party may

resist arbitration once a grievance has arisen, but

this could be best done in accordance with the

usual purpose and policy of the arbitration clause

and federal labor law to regard procedural

disagreements not as separate disputes, but as

aspects of the dispute which called the grievance

procedures into play.

The legal principles annunciated in Wiley are

in accordance with previous guidelines set out in a

series of three landmark cases decided by this

Court--the Steelworkers Trilogy. These cases

establish a narrow and limited scope of judicial

review of arbitration awards in labor disputes.

aFa

In United Steelworkers of America v Warrior &

Gulf Navigation Co., 363 US 574, 4 L Ed 2d 1409,

80 S Ct 1347 (1960), this Court emphasized the need

for a strong Federal policy favoring the use of

arbitration to settle labor disputes. Arbitration

was recognized as a major factor in achieving

industrial peace. Warrior & Gulf Navigation

Company went on to state that an order to arbitrate

should not be denied unless it could be said with

“positive assurance” that the arbitration clause

was not susceptible of an interpretation that

covers the asserted dispute. Id. at 582, 583, 42

Ed 2d at 1417, 80 S Ct at 1352, 1353.

In United Steelworkers of America v Enterprise

Wheel & Car Corp., 363 US 593, 4 L Ed 1424, 80S Ct

1358 (1960), this Court strengthened the federal

policy favoring arbitration by granting finality to

the arbitrator's award. This Court reversed the

Court of Appeals for the Fourth Circuit, which had

modified a lower court after weighing the facts

which had been presented to the arbitrator. It was

stated in Enterprise:

[T]he question of interpretation oi

the collective bargaining agreement

is a question for the arbitrator. It

is the arbitrator's construction which

was bargained for; insofar as the arbi-

trator's decision concerns construction

of the contract, the courts have no

business over-ruling him because their

-8-

interpretation of the contract

is different from his. Id. at 599,

4 L Ed 2d at 1429, 80 S Ct at 1362.

In reversing this Court also specifically

noted that a mere ambiguity in the opinion which

accompanies an award, which permits the inference

that the arbitrator may have exceeded his

authority, is not a reason for refusing to enforce

an award.

The remaining steelworkers case, United

Steelworkers of America v American Manufacturing

Co., 363 US 564, 4 L Ed 2d 1403, 80 S Ct 1343

(1960) stated:

The courts, therefore, have no

business weighing the merits of the

grievance, considering whether there

is equity in a particular claim, or

determining whether there is particu-

lar language in the written instrument

which will support the claim. Every

presumption is in favor of the validity

of the arbitration award. Id. at 568,

4 L. Ed 2d at 1407, 80 S Ct at 1346.

The danger of the judiciary undertaking to

determine the merits of a grievance under the guise

of interpreting the grievance procedure was also

noted. Id. at 569, 4 L Ed 2d at 1407, 80 S Ct at

1347.

In the instant case the United States Court

of Appeals for the Sixth Circuit reconsidered the

-9-

Arbitrator's determination that the award found

support in the contract and in prior practices

demonstrating relaxation of the literal language of

the grievance procedure. The Arbitrator had noted

in his decision that, in previous situations, both

the Company and the Union had deviated from the

time constraints of the grievance procedure.

The Arbitrator also noted that, specifically in the

case before him, the Company had deviated from the

stated time constraints. However, the Sixth

Circuit went on to conclude after examining the

facts of the case and the specific language used by

the Arbitrator to base his decision, that the

Arbitration Award had deviate from the plain

meaning of the labor contract provision.

In doing so, the Court of Appeals for the

Sixth Circuit reversed the District Court decision,

which refused to consider the facts presented to

the Arbitrator beyond determining that the issue

was arbitrable and that the Arbitrator made an

interpretation of the contract. The position of

the District Court was in accord with the Federal

policy of settling labor disputes by arbitration as

expressed in the cases above. The District Court

recognized, in line with Wiley, that it was the

role of the arbitrator to determine the procedural

issues regarding arbitrability of a grievance.

The Arbitrator had noted in his decision that

-10-

the grievance procedure time constraints had been

deviated from on previous occasions. He also noted

that-the Company had requested more time to reply

to this particular grievance and it was granted by

the Union. In addition, he pointed out that the

Union had never signified any intent not to

arbitrate and had mailed a notification letter

dated within the time constraints. No envelope was

introduced to show when the letter was postmarked.

Further, the Arbitrator noted that the relations

between the Company and the Union were good, and to

deny arbitration of this grievance would, in the

view of the Arbitrator, result in deterioration of

good Company-Union relations. Consequently, the

Arbitrator determined that the ‘issue was under the

procedures of the grievance agreement an arbitrable

grievance.

While the Sixth Circuit recognized that among

the sources of guidance to which an arbitrator may

look are the “practices of the shop” that have

developed between the parties in the day-to-day

administration of the collective bargaining agree-

ment, it overturned the District Court decision

that the Arbitration Award should stand. This

determination by the United States Court of Appeals

for the Sixth Circuit is in direct conflict with

previous decisions of this Honorable Court,

specifically the decision in Wiley. Consequently,

-ll-

the District Court Order should be upheld and the

decision of the Sixth Circuit should be reversed. APPENDIX A

Page

Decision of United States Court of

NCLUSION

oo Appeals for the Sixth Circuiteccccccccccccces 14

Detroit Coil Co. v International

ing reasons this Petition for a Association of Machinists & Aero-

a space Workers, Lodge #82, 594 F2d 575

Writ of Certiorari should be granted. (6th Cir. 1979)

Order of United States District Court,

Eastern District of Michigan, Southern

LAW OFFICES OF SMITH & QUINN Divistlonececccccccccccccccccccccccccccccccce 30

Detroit Coil Co. v International

Association of Machinists & Aero-

space Workers, Lodge #82, Unreported

BY: Order of the United States District

JEROME G. QUINN (P-19156) Court, Eastern District of Michigan,

Counsel for Petitioner . Southern Division, C.A. No. 76-71986,

2441 West Grand Boulevard entered on December 28, 1976.

Detroit, Michigan 48208

(313) 898-1666 Award of Arbitrator of the American

° Arbitration Association, Voluntary

Dated: Labor Arbitration TELbuMALecccccsccccceseces 32

International Association of Machinists

& Aerospace Workers, Lodge #82 v Detroit

Coil Company, Unreported Arbitration

Award in Case Number 54-30-0582-76,

entered on July 20, 1976.

=]2<

No. 77-1144

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DETROIT COIL COMPANY,

Plaintiff-Appellant,

Ve

INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE WORKERS,

LODGE #82,

Defendant~Appellee.

Decided and Filed March 21, 1979

Before: WEICK, Circuit Judge, PHILLIPS, Senior

Circuit Judge, and GREEN, Senior District Judge.*

PHILLIPS, Senior Circuit Judge. Detroit Coil

Company (the Company) appeals from an order of the

district court denying the Company's application

for vacation of an arbitration award.

* The Honorable Ben C. Green, Senior Judge, United

States District Court for the Northern District of

Ohio, sitting by designation.

-l]4-

During the course of processing an employee

grievance through the various steps of the

contractual grievance procedure, a dispute arose

between the Company and the Internaticnal

Association of Machinists and Aerospace Workers,

Lodge #82 (the Union). The dispute concerned the

Union's compliance with a notification requirement

contained in Article V, the grievance procedure

section of the collective bargaining agreement

between the Company and the Union (the Agreement).

The parties agreed to submit to arbitration the

question whether that procedural requirement of the

Agreement had been satisfied. The arbitrator held

in favor of the Union, finding that the

notification requirement of Article V had been

waived by the past practices of the Company and the

Union.

The Company brought this action under 29 USC

Sec. 185 and 9 USC Sec. 10(d) te vacate the

arbitrator's award on the ground that the

arbitrator exceeded his authority under the

Agreement by ignoring its express terms in his

determination. The district court denied the

Company's application to vacate the arbitrator's

award, finding that the arbitrator had made factual

determinations concerning the scope of a past

practice. The district court held that the

correctness of the arbitrator's decision was not

-15-

subject to review, so long as the decision was

based upon a construction of the contract and the

manner in which the contract had been interpreted

and applied by the parties in the past.

We reverse.

The Company and Union were parties to a

collective bargaining agreement that ran from

October 1, 1975, to October 1, 1978. Article V of

the Agreement set forth a procedure for the

adjustment and resolution of any grievances that

arose from the day-to-day administracion of the

Agreement. Article V provided, in pertinent part:

Grievance Procedure

l. The procedure for the adjustment of

grievances shall be as follows:

(a) The employee shall endeavor

to adjust his grievance with the

foreman and steward. If no satis-

factory settlement is reached with-

in 24 hours, the grievance shall

be placed in writing and referred

to:

(b) Chief Steward and Plant Manager.

If still unsettled within 48 hours, the

matter shall be referred to:

-16=

(c)(1) Committee of the Union,

Union officials and officials of

the Company. Should the grievance

not then be settled satisfactorily,

the case shall be referred to the

American Arbitration Association for

the selection of an impartial arbi-

trator. Matters properly referred

shall be decided by the arbitrator

and shall be binding upon both par-

ties to this Agreement. The fees

and expenses of the arbitrator shall

be borne equally by both parties. It

is mutually agreed that whenever

possible, the AAA Expedited Arbitra-

tion procedure shall be used to pro-

cess grievances.

(c)(2) The committee, as referred to

above, shall consist of the Chief

Steward, the Departmental Steward, and

an authorized representative of the

Union, the Plant Manager and a represen-

tative of top management. This paragraph

shall not preclude either party from

calling in witnesses at the proper steps

during the grievance procedure.

(d) Unless the American Arbitration

Association and the Company is notified

within eight (8) working days from the

date which last the Local Lodge meets

to select an impartial arbitrator, the

grievance or grievances shall be con-

sidered settled.

(e) Discharged employees must, if

aggrieved, file a grievance relating

to the discharge within three (3)

working days.

=jjJ=

An employee, Douglas Caughron, filed a

grievance, the merits of which are immaterial to

the present appeal. The Company and Union were

unable to resolve the grievance under Sections

l(a), (b), or (c) of the grievance procedure. On

April 6, 1976, during the course of a Local Lodge

meeting, the Union decided to refer the Caughron

grievance to ‘the American Arbitration Association

(the AAA) for binding arbitration, in accordance

with Section 1(d) of the grievance procedure.

The April 30, 1976, the Company received a

letter from James D. Leslie, Business

Representative of Lodge #82, informing it that the

Union had appealed the Caughron grievance to the

AAA for final resolution. Leslie's letter was

dated April 15, 1976. Leonard Jennings, Labor

Relations Director of the Company, wrote Leslie in

response and stated that the Company regarded the

grievance as settled because the Union had failed

to notify the Company within the time requirement

specified by Article V, Section l1(d) of the

Agreement. Jennings pointed out that, pursuant to

Section l(d) of the grievance procedure, the Union

was required to notify both the Company and AAA of

the Union's election to pursue a grievance to

arbitration within eight working days from the date

of the last Lodge meeting, which, Jennings claimed,

the Union had failed to do with the Caughron

grievance.

-18-

In a letter to Jennings dated May 5, 1976,

Leslie apologized for the fact that his April 15

letter was late. However, Leslie reiterated that

the Union intended to pursue the Caughron grievance

to arbitration, stating that both the Company and

Union had been “late in administering the steps of

the grievance procedure” in the past, but that

neither party had used this as an excuse to deny a

grievance.

On May 8, 1976, the Company was notified by

the AAA that it had received, on April 29, 1976, a

letter from the Union requesting arbitration of the

Caughron grievance. The AAA indicated that it

intended to proceed with an arbitration of the

grievance on its merits. Jennings telephoned the

AAA and stated that the Company considered the

Union's request for arbitration to be untimely. In

a subsequent letter to the AAA Jennings noted the

specific time requirement of Article V, Section

1(d) and stated that the Union had failed to comply

with that notification provision. Jennings

calculated that the Company and AAA should have

received the Union's request for arbitration no

later than April 16, 1976.

On May 17, 1976, the tribunal administrator of

the AAA, Mark Sholander, wrote a letter to both the

Company and the Union. Sholander stated that,

after reviewing the contentions of the parties

-]9-

concerning the timeliness of the Union's request

for arbitration of the Caughron grievance, the AAA

had determined “that an issue as to arbitrability

exists which could be determined by an

Arbitrator.” Thereafter, the Company and the Union

agreed to submit to arbitration the question

whether the Union's request for arbit.ation was

timely, in light of the procedural time requirement

of Article V, Section l(d).

The arbitrator issued his opinion and award on

July 20, 1976, finding that Caughron's grievance

should be heard on the merits. The arbitrator

based his decision upon the following conclusions:

In view of the testimony and exhibits

presented at this hearing, it is the

opinion of this Arbitrator that although

the Company did not receive the notifi-

cation that the Union was taking the

Caughron grievance to arbitration until

April 30, 1976, the Caughron grievance

should be heard on its merits. The

letter from the Union to the Company con-

taining the notification is dated April

15, 1976, which falls within the eight

(8) working days as required by Article

V, Section 1, paragraph (d). No evidence

was presented to indicate that it was the

intent of the Union to consider the

Caughron grievance settled.

-20-

In reaching this decision, the

Arbitrator takes note that the

parties have not used in the past

the excuse of time limits to deny

a grievance. Union testimony indi-

cated that it did not insist that

the Plant manager respond to grie-

vances within the 48 hour contractual

requirement. It moreover waived the

time requirements in the Caughron

grievance at Step 3 in order to give

the owner of the Company, who was out

of the city, the opportunity to make

his input to the Company response

dated March 8, 1976.

The Arbitrator in reaching his deci-

sion takes note of the testimony

given by the Plant Manager in which

he stated that relations between the

Company and the Union are good. To

deny the arbitrability of the Caughron

grievance because the Company did not

receive the April 15, 1976, notification

letter until April 30, 1976, would, in

the view of this Arbitrator, result in

a deterioration of the good Company-

Union relationship.

We conclude that the award of the arbitrator

was contrary to the explicit terms of the Agree-

ment and was beyond the scope of his authority.

II

It is well settled that arbitration as a means

of resolving labor disputes is favored and that

=2)-

the courts refrain from reviewing the merits of an

arbitration award. United Steelworkers of America

v Enterprise Wheel & Car Corp., 363 U.S. 593, 596

(1960); Amanda Bent Bolt Co. v UAW, Local 1549,

451 F2d 1277 (6th Cir. 1971). However, a corollary

principle bearing equally on labor arbitration was

articulated by the Supreme Court in Enterprise

Wheel & Car Corp., 363 U.S. at 597:

[A]n arbitrator is confined to

interpretation and application of

the collective bargaining agree-

ment; he does not sit to dispense

his own brand of industrial justice.

He may of course look for guidance

from many sources, yet his award is

legitimate only so long as it draws

its essence from the collective bar-

gaining agreement. When the arbitra-

tor's words manifest an infidelity

to this obligation, courts have no

choice but to refuse enforcement of

the award.

Among those sources of guidance to which an

arbitrator may look are the “practices of the shop”

that have developed between the parties in the

day-to-day administration of the collective

bargaining agreement. The Supreme Court recognized

this principle of contract application in United

Steelworkers of America v Warrior & Gulf Navigation

Co., 363 U.S. 574, 581-82 (1960):

-22-

The labor arbitrator's source of law

is not confined to the express provi-

Sions of the contract, as the indus-

trial common law - the practices of the

industry and the shop - is equally a

part of the collective bargaining agree-

ment although not expressed in it.

See also NF&M Corp. v United Steelworkers of

America, 524 F2d 756 (3d Cir. 1975); H.K. Porter

Co., Inc. v United Saw, File and Steel Products

Workers of America, 333 F2d 596 (3d Cir. 1964).

Thus, while an arbitrator has considerable

latitude, his powers are not unlimited in the

resolution of labor disputes. The arbitrator is

confined to the interpretation and application of

the collective bargaining agreement, and although

he may construe ambiguous contract language, he is

without authority to disregard or modify plain and

unambiguous provisions. General Drivers,

Warehousemen and Helpers, Local Union No. 89 v Hays

& Nicoulin, F2d » No. 77-3221 (6th Cir.,

Feb. , 1979); Monongahela Power Co. v Local

2332 IBEW, 566 F2d 1196, 1199 (4th Cir. 1976);

Timken Co. v Local Union No. 1123 United

Steelworkers of America, 482 F2d 1012 (6th Cir.

1973); Textile Workers v American Thread Co., 291

F2d 894 (4th Cir. 1961). Furthermore, “[i]f the

arbitrator's award has deviated from the plain

meaning of a labor contract provision, it must find

support in the contract itself or in prior

=23-

practices demonstrating relaxation of the literal

language.” NF&M Corp., 524 F2d at 759.

Accordingly, it is the duty of the courts to

ascertain whether the arbitrator's award is derived

in some rational way from the collective bargaining

agreement. See Timken Co., 482 F2d at 1015.

Article V, Section 1(d) of the Agreement in

the present case clearly and unambiguously provides

that “[u]nless the [AAA] and the Company is

notified within eight (8) working days from the

date which last the Local Lodge meets...the

grievance...shall be considered settled.”

(emphasis added) The Local Lodge met and

considered the Caughron grievance on April 6, 1976.

The Arbitrator found in his opinion that the

Company did not receive notification of the Union's

request for arbitration until April 30, 1976. The

AAA did not receive the Union letter requesting

arbitration until April 29, 1976.

However, the arbitrator concluded that the

Caughron grievance was arbitrable, seemingly for a

number of reasons. He based his conclusion, in

part, on the fact that the Union's notification

letter was dated on April 15, 1976, within the

eight day limitation of Article V, and because

there was no evidence to indicate that the Union

considered the Caughron grievance settled.

=%4n

The term “notified,” as used in the Agreement,

must be given its ordinary meaning in the absence

of evidence indicating that the parties to this

contract intended to expand or otherwise deviate

from that meaning. See Monongahela Power Co., 566

F2d at 1200; Timken Co., 482 F2d at 1015. The

word “notified,” in its ordinary usage, means the

completed act of bringing information to the

attention of another. Webster's Third New

International Dictionary, 1545 (14th Ed. 1961).

That the Union's letter was dated within the eight

day time limitation of Article V, Section 1(d)

might have been sufficient to satisfy the

notification requirement of Article V, Section 1(d)

if there was some evidence indicating this to be

the parties’ understanding of the term “notified.”

We find nothing in the record before the arbitrator

to support his conclusion that the Company and

Union intended to expand the scope of the word

“notified” to encompass the mere dating of a

letter, from the Union to the Company and the AAA,

indicating the Union's intent to arbitrate a

grievance. We conclude, therefore, that the

arbitrator exceeded his authority in so holding.

Furthermore, the arbitrator modified, in

effect, the operation of Article V, Section l1(d) to

require proof that the Union considered settled a

=25—

grievance coming within this provision of the

Agreement. This section does not contain any

language indicating that such concession by the

Union is required. Again, absent evidence to

support such a finding, we must conclude that the

arbitrator exceeded his authority by modifying a

clear and unambiguous provision of the Agreement.

The arbitratcr found as a further basis for

his decision, that the Caughron grievance should be

heard on the merits, that compliance with Article

V, Section 1(d) had been excused by the failure of

the parties in the past to enforce the time

limitations of that section of the Agreement. The

arbitrator noted that “the parties have not used in

the past the excuse of time limits to deny a

grievance.” He also cited two instances where the

Union did not adhere strictly to the time

requirements of Article V, Section 1(b) and that

during the processing of the instant grievance, the

Union agreed to a Company request for more time to

respond at step l(c) of the grievance procedure.

That an arbitrator can look for guidance

beyond the express terms of the contract to the

past application of that contract by the parties is

without question. Warrior & Gulf Navigation Co.,

363 U.S. at 581-82. As this court noted in Timken

Co., 482 F2d at 1015:

-26-

A recognized law of the shop operates

to provide a context for the agreements

if only because of the “institutional

characteristics and goverimental nature

of the collective bargaining process.”

Cox, Reflections Upon Labor Arbitration,

72 Harv. Le Rev. 1482, 1498-1500 (1959).

Here, the arbitrator rejected application of

Article V, Section 1(d), essentially because he

determined that prior application of step 1(b) of

the grievance procedure by the Union demonstrated a

relaxation of the literal language of Section

1(d).1

Although a court is precluded from overturning

an award for errors in the determination of factual

1. We note that the arbitrator made mention of

the fact that in processing the grievance, the

Union acquiesced to a Company request for more time

in responding at step l(c) of the grievance

procedure. The arbitrator relied on this fact, in

part, in reaching his conclusion that the parties

had in the past waived the time requirements of

Article V. The fallacy of this reasoning is that

Section l(c) does not have any time requirement

within which the Company must respond. In the

absence of any facts evidencing some understanding

to the contrary, we conclude that this acquiesence

is not indicative of any waiver of contractual time

requirement.

=27=

issues, “[n]evertheless, if an examination of the

record before the arbitrator reveals no support

whatever for his determinations, his award must be

vacated. NF&M Corp., 524 F2d at 760. Notwith-

standing the arbitrator's reliance on “past

practices” arising from the application of Section

1(b), we find no evidence in the record which would

allow the arbitrator to reach the conclusion that

the parties to any extent waived compliance with

Section 1(d) of the Agreement. The arbitrator's

conclusion manifests a clear failure to draw the

essence of the award from the Agreement.

Finally, the arbitrator concluded the Caughron

grievance was arbitrable because “[t]o deny

arbitrability...because the Company did not receive

the April 15, 1976, notification letter until April

30, 1976, would...result in a deterioration of the

good Company-Union relationship.” Standing alone,

we view this assertion as nothing more than the

arbitrator dispensing “his own brand of industrial

justice.” In Timken Co., 482 F2d at 1015 n. 2, the

court stated, as follows:

It is axiomatic that if the arbitrator

undertook to, in effect, amend the con-

tract, to substitute his own discretion

for that of the parties or to dispense

“his own brand of industrial justice,”

the enforcement of the award must be

denied.

-289-

In view of the clear and unambiguous language of

Article V of the collective bargaining agreement,

and since the record contains no evidence

indicating a departure by the parties from the

clear intendment of that language, we conclude that

the arbitrator's award cannot be deduced rationally

from the Agreement, nor does the award draw its

essence from the Agreement.

The judgment of the district court is

reversed. The case is remanded with directions to

set aside the award of the arbitrator and for

further proceeding not inconsistent with this

opinion.

=29=

UNITED STATES DISTRICT COURT ,

EASTERN DISTRICT OF MICHIGAN IT IS HEREBY ORDERED that Plaintiff's

SOUTHERN DIVISION . application to vacate the aforementioned award is

DETROIT COIL COMPANY, denied.

Pl ff

eintits, . JAMES P. CHURCHILL

cians C.A. No. 76-71986 U.S. District Court Judge

INTERNATIONAL ASSOCIATION OF |

MACHINISTS AND AEROSPACE WORKERS, Entered: December 28, 1976

LODGE #82

. Approved as to form:

Defendant. ,

/ R. Ian Hunter

ORDER |

/s/

Jerome G. Quinn

At a session of said Court held in the

Federal Building, Detroit, Michigan,

on December 6, 1976.

PRESENT: HONORABLE JAMES P. CHURCHILL

U.S. District Court Judge '

Plaintiff having moved this Court to vacate

the arbitration award entered on July 20, 1976,

pursuant to 9 U.S.C. Section 10(d) and said matter

having been heard as a motion pursuant to 9 U.S.C. -3)-

PE TE a a BES Ne

Section 6, and the Court having reviewed the

pleadings and considered the argument of counsel:

-30-

AMERICAN ARBITRATION ASSOCIATION

VOLUNTARY LABOR ARBITRATION TRIBUNAL

In the Matter of the Arbitration between

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, LODGE #82,

-and-

DETROIT COIL COMPANY

CASE NUMBER: 54-30-0582-76

AWARD OF ARBITRATOR

The undersigned arbitrator(s), having been

designated in accordance with the arbitration

agreement entered into by the above-named Parties,

dated _ and having been duly sworn and having

duly heard the proofs and allegations of the

Parties, AWARDS as follows:

The Caughron grievance is arbitrable. The

Union wrote a letter to the Company dated April 15,

1976, stating the grievance was being taken to

arbitration. According to the time limits of

Article V, Section 1, paragraph (d) of the |

Agreement, the Company should have received the

notification letter by April 19, 1976, but received

it on April 30, 1976.

The parties in the past have not used the

excuse of time limits to deny a grievance.

The Arbitrator therefore directs the parties

to convene at a mutually acceptable date in order

for him to hear the merits of the Caughron

grievance.

/s/ (Daniel H. Kruger)

Arbitrator's signature (dated)

July 20, 1976

AMERICAN ARBITRATION ASSOCIATION

VOLUNTARY LABOR ARBITRATION TRIBUNAL

IN THE MATTER OF THE ARBITRATION BETWEEN

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, LODGE #82

-and-

DETROIT COIL COMPANY

GRIEVANCE: Douglas Caughron

CASE NUMBER: 54-30-0582-76

ARBITRATOR'S OPINION AND AWARD

Appearances

For Union Lodge #82

Theresa Peterson Steward

Marion Brew Chief Steward

James D. Leslie Business Representative

District 60, IAM

For the Employer

Robert Dugan Plant Manager

Leonard Jennings Director, Labor Relations

-34-

INTRODUCTION

This is a proceeding under Article V,

Grievance Procedure of the Collective Bargaining

Agreement between the Detroit Coil Company and the

International Association of Machinists and

Aerospace Workers, AFL-CIO Lodge #82, for the years

October 1, 1975 to October 1, 1978. (Joint Exhibit

_ #1)

The Arbitration hearing was held on July 8,

1976, at the Detroit Coil Company, 2435 Hilton

Road, Ferndale, Michigan. The parties had selected

Daniel H. Kruger as the Arbitrator.

At the hearing, the parties were given the

opportunity to present their respective positions

on this grievance, to offer evidence, to present

witnesses and to cross examine witnesses. At the

conclusion of the hearing, the parties were asked

if they planned to submit post hearing briefs to

the Arbitrator. Both parties replied that they

would not submit briefs.

ISSUE

The issue in this Arbitration proceeding is

the arbitrability of the grievance. The specific

issue is: Did the Union violate the contractual

provisions of Article V, Grievance Procedure, by

not notifying the Company and the American

Arbitration Association within the time frame as

-35-

required in Article V, Section 1, paragraph (d) of

the Agreement?

CASE HISTORY

Article V, Section 1, paragraph (d) of the

Agreement reads:

"Unless the American Arbitration Association

and the Company is notified within eight (8)

working days from the date which last the Local

Lodge meets to select an impartial Arbitrator, the

grievance or grievances shall be considered

settled.” (Joint Exhibit #1, p. 5)

The Company through Mr. Jennings stated that

this clause had been negotiated into the Agreement

in 1962 at the request of the Union. In the

negotiations for the current Agreement the Union

had proposed that the American Arbitration

Association be substituted for the Michigan

Employment Relations Commission and the Company

agreed. The Company also stated that the Union did

not propose any other changes to Article V, Section

1, paragraph (d) during the 1975 negotiations.

Testimony by the Union confirmed that the

Lodge had met on April 6, 1976, and had discussed

the grievance of Douglas Caughron. The Union

decided at this meeting to carry this grievance to

arbitration. The Employer contends that if the

Union wanted to arbitrate the Caughron grievance

it had to submit a letter to both the American

-36-

Arbitration Association and Company within eight

working days as specified in Article V, Section l,

paragraph (d). The Company maintains that the

Union failed to notify the American Arbitration

Association and the Company within the eight (8)

working days. It stated that when no letter was

received within this time frame it assumed that the

grievance was closed. It is the position of the

Company that the grievance has been settled and

that there is no grievance to be resolved by the

Arbitration Proceeding.

According to the Company, notification by the

Union that the Caughron grievance was going to

arbitration should have been received by the

Company by April 16, 1976. The Union replied that

April 16, 1976, was Good Friday and was not a

working day but was a paid holiday as provided for

in Article VIII of the Agreement. The Union stated

that notification should have been submitted by

April 19, 1976.

The Union introduced a letter dated April 15,

1976, which it wrote to the Company which read:

“Please be advised that the Union has appealed

the above named grievance (Douglas Caughron) to the

American Arbitration Association for binding

arbitration.” (Union Exhibit #1)

The Company maintains that the letter of April

15, 1976, (Union Exhibit #1), was received on April

-37-

30, 1976. It introduced the letter of April 15,

1976, in evidence and stated that the Company

stamps the date on all correspondence received.

The stamped date of “April 30, '76” appears on the

letter. (Company Exhibit #1A)

On May 3, 1976, the Company wrote a letter to

the Union which read:

“In reference to your letter received April

30, 1976, concerning Douglas Caughron.

Under Article V, Section 1(d), unless the

American Arbitration Association and the Company is

notified within eight (8) working days from the

date which last the Local Lodge meets to select an

impartial arbitrator, the grievance or grievances

shall be considered settled.

The Company feels that the issue is settled

inasmuch as the Union did not give notice to the

Company within eight (8) days as specified in

Article V, Section 1(d) of the Agreement.”

(Company Exhibit #1B)

On May 5, 1976, the Union wrote a letter to

the Company which read:

"In reference to your letter received May 4,

1976, concerning Douglas Caughron.

I must apologize for the fact that the Unions

letter concerning arbitration of Mr. Caughron's

grievance arrived late. I've been out of town a

great deal on Union business and I was not aware

that the Unions letter concerning arbitration had

not been forwarded to you.

-38-

As you know from past practice both the

Company and the Union have been late in ad-

ministering the steps of the grievance procedure,

however neither party has used this excuse to deny

a grievance.

Therefore, I must inform you that I intend to

follow through with the Unions demand for

arbitration. If a question of arbitrability

arises, it will be a matter to be properly decided

by the Arbitrator.

Your co-operation and understanding in this

= as always, is appreciated.” (Union Exhibit

On May 6, 1976, the American Arbitration

Association wrote a letter to both the Company and

Union which read in part, “The Union filed with

this office on April 29, 1976, a demand for

arbitration, dated April 15, 1976, requesting

arbitration of a controversy arising out of a

collective bargaining agreement...” (Company

Exhibit #2A) Reference in this letter was made to

the Caughron grievance.

On May 10, 1976, the Company wrote to the

American Arbitration Association (AAA) and enclosed

a copy of its letter to the Union dated May 3,

1976, (Company Exhibit 1B noted above). This

letter to the AAA also contained the following

paragraphs:

-39-

"In order to be a timely filed request for

arbitration, a letter should have been in the hands

of the Company and the American Arbitration

Association no later than April 16, 1976.”

(Company Exhibit #2. See also Union Exhibit #3).

The Company's letter to the AAA refers to the

April 16, 1976, date but as noted above the Union

maintains that the deadline for notifying both the

Company and the AAA was April 19, 1976.

On May 17, 1976, the AAA wrote a letter to

both the Company and the Union which read:

“This will acknowledge receipt of Mr. Leslie's

letter of May 5, 1976, a copy of which is herewith

enclosed for Mr. Jennings.

The American Arbitration Association, after

reviewing the contentions of the Parties, has

determined that an issue as to arbitrability exists

which could be determined by an Arbitrator. We

will proceed with further administration of this

matter unless otherwise requested by both Parties

or unless the moving Party is stayed by court

order.

Therefore, at this time we request that Mr.

Jennings return the list for the selection of the

Arbitrator. Unless we have received the list by

May 24, 1976, all names will be deemed acceptable.”

(Company Exhibit #3)

On June 3, 1976, the AAA wrote to both the

Company and the Union stating that Daniel H. Kruger

had been selected as Arbitrator and that the date

of the hearaing offered was July 8, 1976. The

letter went on to say that if there was no

objection to the date, it would assume that the

date was acceptable.

-40-

oe a net ee ee Rene Re oe

DISCUSSION OF ISSUES AND CONCLUSIONS

The Company contends that there has been no

problem with the eight (8) day notification clause

in the Agreement since its inclusion in 1962. The

Company moreover maintains that it is very

important for the parties to observe the

contractual provisions as required in Article V,

Grievance Procedure of the Agreement because

failure to do so could lead to chaos. The Company

stated that the Union has observed the time

requirements of Article V, Section 1, paragraph (d)

in the past and since it did not adhere to the

provisions of this Agreement in the Caughron

grievance the grievance in its view is clesed.

The Union in testimony by Mrs. Marion Brew,

Chief Steward, stated that the Union did not always

insist that Mr. Dugan, the Plant Manager, respond

to a grievance within the 48 hours as required in

Article V, Section 1, paragraph (b). She did not

choose to file a grievance when the Plant Manager

did not give his response to grievances within the

48 hours as required by the Agreement. The Union

testified that it did not insist on a response from

the Plant Manager since “no one was on the

streets." Moreover, as indicated by the Plant

Manager, relationships between the Company and the

Union were good.

o4j<

The Union introduced exhibits which showed

that it did not insist on a response by the Plant

Manager within the 48 hours requirement. On

January 24, 1976, a Kenneth J. Kingstrom filed a

grievance and the Plant Manager gave his response

on January 29, 1976. (Union Exhibit #6) The Union

noted that the response was more than 48 hours

after the grievance had moved to Step 2 (Plant

Manager level).

A second exhibit introduced by the Union to

show that it did not insist on a 48 hour response

by the Plant Manager was the grievance by Joan

Wells (Union Exhibit #5). This grievance was filed

on February 18, 1976, and the response by the Plant

Manager was given on February 24, 1976, more than

48 hours after the grievance had moved from Step 1

to Step 2.

In the grievance in question, the Union stated

that Douglas Caughron filed his grievance on

February 4, 1976; the Company responded on

February 6, 1976. On February 25, 1976, the

Company and the Union held its first meeting (Step

3) to discuss the grievance which was not resolved

at Step 2. It was pointed out that Mr. James

Leslie, Business Representative, was not at this

meeting but Mr. Joe Martin, Directing Business

Agent for District #60 attended.

-42-

It was pointed out that the Company requested more

time to reply to this grievance because Mr. Jencks,

owner of the Company, was out of town and it was

granted. The Company made its response to this

grievance (Step 3) on March 8, 1976.

It was pointed out by the Company and

confirmed by the Union that the Company response of

March 8, 1976, was given well in advance of the

April 6, 1976, union meeting at which time the

decision was made to take the Caughron grievance to

arbitration.

The Union testified that it did not know when

the AAA received its letter of April 15, 1976, in

which the Union stated it was appealing the

Caughron grievance to the AAA.

The Arbitrator takes note that the

notification letter of April 15, 1976, from the

Union to the Company carries a stamped date of

April 30, '76. No envelope was introduced to show

when the letter was postmarked. (My italics) The

letter from the AAA to the parties dated May 6,

1976, calls attention that the Demand for Arbitra-

tion of the Caughron Grievance datged April 15,

1976, was filed at the AAA office on April 29,

1976.

The Union in its letter to the Company dated

May 5, 1976, acknowledges that it was unaware that

its letter of April 15, 1976, was not forwarded to

the Company. This letter further states that

neither party in the past has used the excuse of

time limits to deny a grievance (see Union Exhibit

#2 quoted above).

In view of the testimony and exhibits

presented at this hearing, it is the opinion of

this Arbitrator that although the Company did not

receive the notification that the Union was taking

the Caughron grievance to arbitration until April

30, 1976, the Caughron grievance should be heard on

its merits. The letter from the Union to the

Company containing the notification is dated April

15, 1976, which falls within the eight (8) working

days as required by Article V, Section 1, paragraph

(d). No evidence was presented to indicate that it

was the intent of the Union to consider the

Caughron grievance settled.

In reaching this decision, the Arbitrator

takes note that the parties have not used in the

past the excuse of time limits to deny a grievance.

Union testimony indicated that it did not insist

that the Plant Manager respond to grievances within

the 48 hour contractual requirement. It moreover

waived the time requirements in the Caughron

grievance at Step 3 in order to give the owner of

the Company, who was out of the city, the

opportunity to make his input to the Company

response dated March 8, 1976.

The Arbitrator in reaching his decision takes

note of the testimony given by the Plant Manager in

which he stated that relations between the Company

and the Union are good. To deny the arbitrability

of the Caughron grievance because the Company did

not receive the April 15, 1976, notification letter

until April 30, 1976, would, in the view of this

Arbitrator, result in a deterioration of the good

Company-Union relationship.

AWARD

The Arbitrator directs the parties to convene

at a mutually acceptable date in order for him to

conduct an arbitration hearing on the Caughron

grievance.

/s/

Daniel H. Kruger

Arbitrator

Dated: July 20, 1976

TABLE OF CASES

John Wiley & Sons v Livingston, 376 US 543,

1l L Ed 2d 898, 84 S Ct 909 (1964)...eee.

United Steelworkers of America v American

Manufacturing Co., 353 US 564,

42 Ed 2d 1403, 80 S Ct 1343 (1960)....0..

United Steelworkers of America v Enterprise

Wheel & Car Corp, 363 US 593,

42 Ed 2d 1424, 80 S Ct 1358 (1960)..ee0-

United Steelworkers of America v Warrior

& Gulf Navigation Co., 363 US 5/4,

4 L Ed 2d 1409, 80 S Ct 1347 (1960)...e-.

Page

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