# Petition for Writ of Certiorari — Frontier Pilots Litigation Steering Committee, Inc. v. Continental Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0945%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 864 ## Text | Supreme Court Us. | FILED ™ JUL 9 ‘ 1992 NO. 92 - | OFFICE OF THE Gunn | = j IN THE SUPREME COURT OF THE UNITED STATES October Term 1992 Frontier Pilots Litigation Steering Committee, Inc., Petitioner, Vv. Continental Airlines, Inc. Continental Pilots Merger Committee, People Express Pilots Merger Committee, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit John A. McGuinn Counsei of Record Schmeltzer, Aptaker & Shepard 2600 Virginia Avenue, NW Suite 1000 Washington, D.C. 20037 (202) 333-8800 Attorney for Petitioner * July 9, 1992 a Questions Presented For Review 1. Whether the Court of Appeals and the District Court invaded the juris- diction accorded to arbitration in viola- tion of the decisions of this Court and other Courts of Appeal by ruling that the federal judiciary -- rather than an arbitrator -- should determine the effect of a prior arbitration award on a subse- quent arbitration proceeding in circum- stances where: -- The ruling denied the pilots of one carrier (Frontier Airlines) involved in a seniority integration arbitration with a major U.S. airline (Continental Airlines) and deregulation start up airline (People Express Airlines) of the fair and equitable seniority integration mandated by the underlying arbitration agreement, resulting in permanent career damage to the Frontier pilots whose 1955- 68 hired captains were inserted on the integrated list as a class far junior to the 1980-83 hired People Express captains despite their vastly greater length of service and other superior pilot equi- ties; and == The arbitrator admitted that but for the District Court's intrusion into the arbitration process he would have ruled in a manner far more favorable to the former Frontier pilots insofar as their placement on the integrated senior- ity list. YP Whether, in the same circunm- stances, the District Court and Court of Appeals abandoned their limited but proper role in reviewing arbitration awards by ignoring a gross’ violation of the District Court's own order prohib- iting ex parte contacts between the ii | 7" arbitrator and a representative of one of the parties which occurred at a critical juncture in the decision making process. iii List of Parties to Proceeding The parties to this proceeding are the following: 1. People Express Merger Commit- tee - Continental Airlines} 3. Frontier Pilots Litigation Steering Committee 4. Continental Pilots Merger Com- mittee2 1 Texas Air Corporation was at the time the action was filed the parent company of Continental Airlines. 2 Frank Shanley, who appears’ in the caption of the Third Circuit judg- ment order, was replaced by the Continental Pilots Merger Commit- tee. iv ee TABLE OF CONTENTS Questions Presented For ag | ae eo anne List of Parties to Proceeding.. Table of Contents.......-...cee- Table of Authorities. ......csse-» Opinions Below... c.cessescccsacs PUPILOGISCIGM sc occ esctecssesens Statute Involved.........ceceee Statement of the Case.......... Reasons for Granting the Writ OF COrtlOFari. sccscccanens I. The Judicial Requirement That A Subsequent Arbitrator Be Bound By The Decision Of A Prior Arbitrator Is Contrary To Decision Of This Court, The Third Circuit And Other Courts Of Appeal And Such Intrusion By The Judiciary In Substantive Issues Committed To The Arbitration Process Is A Recurring Problem In The Labor Arbitration - Process That This Court Should Address And COPPGCE +2 cee ei acceesenes ‘ II. To Protect The Integrity Of The Arbitration Process And The Parties To It, This Court Should Direct The Federal Courts To Uphold Court Imposed Bans On Ex Parte Communications Between Arbitrators And Parties To Arbitrations And Resolve A Conflict Between The Third Circuit And The Ninth Circuit Court Of ARDMORE. ccc cvvecussseee 48 CONGIUBLOR. ov cccceccweneseueas 56 ABOREEM «60606 kb act ee eh eS A la vi TABLE OF AUTHORITIES ses: AT&T Technologies v. CWA, 475 U.S. 643 (1986) ..cccccce Butler Armco Independent Union v. Armco, Inc., 701 F.2d 253 (3rd Cir. SONS. Kecsdatseens Connecticut Light & Power Co. v. Local 420, IBEW, 718 F.2d 14 (2a Cir. Ser Federal Bearings Co., Inc., 33 ksh. FRA (3084)... Hotel Ass'n of Washington v. Hotel & Restaurant Employees Union, F.2d (D.C. Cir. yy, | ere et Local 103, IVE v. RCA Corp., 516 F.2d 1336 (3rd Cir. | rae ae Local 504 v. Roadmaster Corp., 916 F.2d 1161 (7th Cir. eee vii 22,23 34,35,42 39 37 42 36, 37 passim 40 e olita dison Co. v. NLRB, 663 F.2d 478 (3rd Cir. 1981), aff'd 460 U.S. 693 ei &) PPP rTeTT Terre iaven'e -2aeae arine & : Vv ad s e 868 F.2d 52 (3d Cir. i PPT Tee ee TCL TTP eee 49,50 Pacific & Artic Ry. & Nav. Co. v. United Transportation Union, 952 F.2d 1144 (9th Cir. Ne ae eS) wg 53,54 Riverboat Casino, Inc. v. Joint Executive Bd., 578 F.2d 250 (9th Cir. a ee etree sy 6 64k bre 39 arine Tug & Barge v. North Am. Towing, 607 F.2d 649 (5th Cir. SGU s bac is rae cue ay Oe 49 Transit Mix Concrete Corp. v. Local 282, : 809 F.2d 963 (2d Cir. Sg SS Oe RGR A eae area 41,42 U.S. Lines v. Federal Maritime Commission, 584 F.2d 519 (D.C. Cir. SPT See ere Kiaeee eens Tine. ae United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 (1960)......... 42,22 viii aise necs icin mrnnsiervninroani United Mine Workers of America v. Consolidation Coal Co., 666 F.2d 806 (3rd Cir. eee eS ee Pere Westinghouse Broadcasting vy. Local 804 , 616 F.2d 97 (3rd Cir. ie ek ever tr ek cek ces Westi use Elevators Vv. SIU de Puerto Rico, 583 F.2d 1184 (1st Cir. ne ee OM RE ee Other Authority: The Washington Post, 7/5/92, p. H1, “Labor Loses the Strike as a Weapon"......... ix NO. 92 - IN THE SUPREME COURT OF THE UNITED STATES October Term 1992 Frontier Pilots Litigation Steering Committee, Inc., Petitioner, Vv. Continental Airlines, Inc. Continental Pilots Merger Committee, People Express Pilots Merger Committee, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit The petitioner respectfully prays that a writ of certiorari issue to review a judgment of the United States Court of Appeals for the Third Circuit. CC -2- Opinions Below The Order of the District Court compelling arbitration inthis’ case is not officially reported but is reprinted in the Appendix at pp. la-15a. The Order of the District Court confirming the Ross arbitration award is not officially reported, but is reprinted in the Appendix at pp. i16a-57a. The Order of the Court of Appeals affirming the District Court's order is not officially reported, but is reprinted in the Appendix at pp. 58a-60a. The Order of the Court of Appeals denying rehearing and rehearing in banc is not officially reported, but is re- printed in the Appendix at pp. 61la-63a. Jurisdiction The judgment of the Court of Appeals for the Third Circuit was entered on February 13, 1992. A timely petition for rehearing and suggestion for rehearing in banc was denied on April 10, 1992, and this petition for certiorari is being filed within 90 days of that date. The Court's jurisdiction is being invoked under 28 U.S.C. § 1254(1). Statute Involved The statute involved is The United States Arbitration Act, 9 ae 16(a)(1)(D), which provides: An appeal may be taken from -- (1) An order -- (D) Confirming or denying confirmation of an award or partial award.. ." Statement of the Case This cas arises from a lawsuit _ . initiated by the People Express Pilots Merger Committee (PEX pilots) against Continental Airlines (CAL) seeking, inter ee -4- alia, an order compelling arbitration of the issue of pilot seniority integration. The issue arose because of a transaction in late 1986 by which CAL acquired People Express, Inc. As a part of that transac- tion, CAL had filed a Labor Protection Agreement (LPA) with the Department of Transportation. The LPA was an agreement between CAL and People Express, Inc. providing for a fair and equitable pilot seniority arbitration with respect to pilots employed by CAL and pilots "of the air carrier subsidiaries of" People Express, Inc.?. At that time, the two air carrier subsidiaries of People Ex- press, Inc. were People Express Airlines and Frontier Airlines. As a condition precedent to the acquisition by CAL of People Express, ENC. CAL acquired Frontier Airlines (FAL) and all of its common stock. In connection with that transaction, CAL required all FAL pilots to execute a document called the Job Preservation 1 The exact terms of the LPA provided that: Following consummation of the aforesaid Merger Agreement, in the event of a future merger of airline operations involving any air carrier subsidiary of People Express, Inc., provision shall be made for fair and equitable seniority, integra- tion procedures ... which shall include as a final step, if necessary in the absence of agreement, a final and binding decision by a neutral mediator -6- Agreement (JPA). Side Letter 2 of the JPA provided, inter alia, for a seniority integration arbitration, and imposed conditions to the effect that the arbi- trator was to take special note of the fact that Frontier was not operating at the time of the acquisition and that the arbitrator should recognize the promo- tional expectations of Continental pilots to aircraft on order or on firm option to CAL as of September 15, 1986. An arbitration took place pursuant to the JPA before Arbitrator George Nicolau who issued his decision on June 15, 1987. In that decision in which Arbitrator Nicolau noted the JPA's "con- Siderable and obvious tilt in favor of" the CAL pilots, Arbitrator Nicolau placed all FAL captains, regardless of their “length of service junior to the most junior CAL captain.? Later in 1987, CAL unilaterally integrated the PEX pilots into the Nicolau list and placed the 1980-1983 hire PEX captains below (or junior to) the 1955-1968 hire FAL cap- tains. Meanwhile, the PEX pilots' suit to compel arbitration under the LPA went forward, and on December 9, 1988, the Frontier Pilots Litigation Steering Committee (FAL pilots) was granted inter- vention in order to protect their inter- ests as one of the two air carrier subsidiaries of People Express, Inc. who were entitled to the protection of its terms. 2 The- FAL pilots subsequently sought unsuccessfully to vacate Arbitrator Nicolau's Award under the tradition- al grounds for vacating an arbitra- tion award under the Federal Arbitration Act. With all relevant and needed parties then before it, the District Court, after a bench trial, issued an order on August Te 1989 compelling arbitration. The order compelling arbitration tracked the provisions of the LPA and commanded that: The neutral shall consider any factor relevant to a fair and equitable integration of the seniority lists of the People Express, Frontier and Continen- tal pilots. The parties are free to urge the neutral to consider any factor, and put in evidence any support, that they believe is relevant to this standard. (Appendix, pp. 8a-9a) In an apparent contradiction to the above-stated standard, the District Court, over the vigorous objection of the FAL pilots, inserted the following lan- guage in its order compelling arbitra- tion: The Frontier Pilots Litigation Steering Committee's participa- tion in this arbitration shall be circumscribed by the Final Award of Arbitrator George Nicolau, dated June 15, 1987. FAL may not assert a position inconsistent with that Arbitra- tion Award but shall, for the purposes of this arbitration, be deemed bound by that Award. The Award of Arbitrator Nicolau is currently under appeal. In the event, at any time prior to the Final Arbitrator's Award in this matter, the decision of Arbitrator Nicolau shall be reversed or modified, any party may make application to this Court, on short notice, to consider the impact of that determination upon this arbi- tration proceeding. (Appendix, pp. 2a-3a) Subsequent to the issuance of the order, the FAL pilots requested reconsid- eration of this provision of the order based on the uniform line of cases in the Third Circuit and others that it is for the arbitrator, not the federal judicia-.-. ry, to determine what weight, if any, is to be accorded a prior arbitration award in a subsequent arbitration proceeding. When the District Court refused reconsideration, the FAL pilots requested that he certify this issue for interlocu- tory appeal in order to avoid going through a lengthy and costly proceeding only to have it reversed on appeal. The Court rejected this request. After, nevertheless, appealing to the Third Circuit, the FAL pilots agreed to with- draw their appeal because of the lack of finality of the District Court's order, and the Clerk's office dismissed the appeal on October 11, 1989. Prior to the hearing before Arbitra- tor Ross, CAL filed a "Motion in Limine" in which it requested that Arbitrator Ross formally rule that the FAL pilots Should be bound by the Nicolau Award. Arbitrator Ross granted CAL's motion over pat ere. Oe ae -ll- the objections of the FAL pilots. The FAL pilots made one last request to the District Court to change its ruling by appealing the decision of Arbitrator Ross granting CAL's motion in Limine. Once again, the District Court adhered to its ruling, and 73 days’ of hearings before Arbitrator Ross commenced. The several efforts of the FAL pilots to reverse the District Court's circumscription language before the hearing were based on their fear (cor- rectly founded, as it turned out) that the Court of Appeals might -- if the lengthy hearing went forward -- ignore the relevant law and sweep the errors under the rug onthe misguided belief that the. matter should be concluded -- whatever the errors that occurred. -12- During the post-hearing but pre- decision phase of the proceeding, Arbi- trator Ross admitted (1) that the FAL pilots were poorly treated in the Nicolau Award; (2) that the FAL pilots had supe- rior equities to the PEX pilots; (3) that he did not apply the fair and equitable standard in the LPA in comparing the equities of the FAL and PEX pilots; (4) that if he had compared such equities, the FAL pilots would be moved up higher on the integrated list; (5) that the Nicolau "caveat" in the Court's order compelling arbitration prevented him from moving up the FAL pilots’ on the inte- grated list; (6) that the FAL pilots would have been better off if they had never showed up to partdieiwatle in the arbitration; and (7) that the FAL pilots -- and only the FAL pilots -- had "really taken gas" in his arbitration proceed- ing. Also during the post-hearing but pre-decision phase of the proceeding called the technical support committee phase of the proceedings where all par- ties except their counsel were present and were discussing the heart of the case -- how the lists would be integrated -- an admitted ex parte contact occurred between the arbitrator and the chairman of the PEX Pilots Merger Committee. Paragraph II.8(c) of the District Court order compelling arbitration stat- ed: Communication with Neutral. Neither Continental nor the committees may communicate with the neutral, either formally or informally, outside the pres- ence of the other parties, except in writing, with copies to the other parties, provided, however, that any party elect- ing not to be present for a -14-+ meeting or hearing date waives any right to be present for such communications. (Appendix, p. 13a) On July 12, 1991, two issues vitally affecting the FAL pilots were being discussed. First, whether the ratio of PEX-CAL captains would be extended down to the most junior FAL captain (more favorable to the FAL pilots) or would end prior to the most senior FAL captain, thus making all FAL captains the junior captains on the airline; and, second, whether the ratio of PEX captains would start at CAL pilot #1040 or at some point above that. On the same day, the PEX technical support committee members cnventined to withdraw from further participation in the technical support process and Arbi- trator Ross requested that committee to reconsider. Later that day, Arbitrator Ross and PEX merger committee chairman Mackenzie had a closed door, ex parte meeting lasting between 15 and 30 minutes. Immediately after the conclusion of that ex parte meeting when all members of the technical support committee met together in joint session, Arbitrator Ross informed the committee members that he had reached a conclusion on the two issues specified above vitally affecting the interests of the FAL pilots and both decisions favored the interests of the PEX pilots and were detrimental to the interests of the FAL pilots. When these decisions favoring the interests of the PEX pilots were an- nounced, the PEX committee members did not follow through on their threat to boycott the technical support committee a meetings, and they attended all _= such meetings that followed. . The FAL pilots timely raised the issue of the July 12, 1991 ex parte communication in their letter to Arbitra- tor Ross on July 14, 1991, and in their _ request of August 12, 1991 that he recuse himself. On August 13, 1991, Arbitrator Ross refused to recuse himself. His letter did not deny that the ex parte contact occurred, but claimed rather that no issue under litigation was discussed. On August 13, 1991, Arbitrator Ross issued his decision. In his decision, Arbitrator Ross completely inverted the Company's alignment of PEX and FAL cap- tains on the Company's list and placed the 1980-1983 hire PEX captains as a class not only above, but hundreds of numbers above the 1955-1968 hire FAL -17- captains, thus making these veteran FAL captains the most junior captains on the entire CAL system, and thereby subjecting them to the worst schedules and other working conditions and making them the first to be downgraded from captain to first .officer in the event of a contrac- tion in flying. After the award issued, the PEX pilots immediately sought confirmation of the award in the District Court. The FAL pilots moved that the award be rejected. On November 22, 1991, the District Court entered an order confirming the Ross Award and followed it with a twenty- three page letter opinion on November 26. (Appendix, pp. 16a-57a) Thereafter, the FAL pilots moved the Third Circuit for a stay pending appeal which was initially granted on December 5, 1991 after the Court had received the opposition papers of Continental and the PEX pilots. On the next day, Continental filed an emergency petition for rehearing and clarification of the stay order. That petition was granted ex parte in an oral order issued at approximately 8:30 p.m. on Friday night, December 6, 1991. When the FAL pilots filed their opposi- tion -- as the Court had directed -- at 3:55 p.m. on Monday, December 9, 1991, the Court rejected the FAL pilots opposi- tion and confirmed its Friday night oral order by written order issued at 5:19 p.m. on December 9, 1991. The appeal was nevertheless expe- dited and oral argument was heard on Monday, February 10, 1992. On Thursday, February 13, 1992 the Third Circuit entered a brief judgment order affirming the judgment of the District Court. (Appendix, pp. 58a-62a) -19- On April 10, 1992 the Third Circuit denied the FAL pilots motion for rehear- ing and/or for rehearing in banc. (Ap- pendix, pp. 61a-63a) Reasons for Granting the Writ of Certiorari This case presents the Court with a unique opportunity to exercise its super- visory powers to correct two unfortunate- ly common departures from the accepted and usual course of judicial and arbitral proceedings which also are in conflict with the decisions of this Court and the other circuit courts of appeal. The first departure is the activist encroachment of the District Court, with the approval of the Third Circuit, on jurisdiction committed by this Court and the Courts of Appeal to the realm of arbitration. Specifically, the District Court encroached onthis' area when its -20- order compelling arbitration required the subsequent arbitrator to be "bound" by the prior arbitration award of Arbitrator Nicolau. The second departure is the abject failure of the District Court, with the approval of the Court of Appeals, to exercise its limited supervision over the arbitration process to require that arbitrator abide by court ordered prohi- bitions against ex parte contacts. This failure also placed the Third Circuit in direct conflict with a recent decision of the Ninth Circuit upholding bans on ex parte contacts. In short, we have a case here where the Court first wrongfully intruded into the arbitration process and, second, failed to act when its own order against ex parte contacts was blatantly defied. -21i- I. The Judicial Requirement That A Subsequent Arbitrator Be Bound By The Decision Of A Prior Arbitrator Is Contrary To Decision Of This Court, The Third Circuit And Other Courts Of Appeal And Such Intrusion By The Judiciary In Substantive Issues Committed To The Arbitration Process Is A Recurring Problem In The Labor Arbitration Process That This Court Should Address And Correct Over thirty years ago, this Court defined the respective roles of the federal judiciary and arbitrators in labor arbitration and held that the role of the federal judiciary was to be mini- mal. In United Steelworkers of America v. ica . Co., 363 U.S. 564 (1960), this Court specifically rejected a claim that federal courts could reject arbitra- tion as ameans for settling a dispute because the lower court had determined that the provision involved was “beyond -22- dispute" as to its meaning (363 U.S. at 567). Instead, the Court held: The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity ina particular claim, or deter- mining whether there is partic- ular language inthe written instrument which will support the claim. 363 U.S. at 568. And, finally: When the judiciary undertakes to determine the merits of a grievance under the guise of interpreting the grievance procedure of collective bar- gaining agreements, it usurps a function which under that regime is entrusted to the arbitration tribunal. 363 U.S. at 569. This principal was forcefully reit- erated by this Court in AT&T Technologies v. CWA, 475 U.S. 643, 649-650 (1986), where the Court held: The third principle de- rived from our prior cases [the Arbitration Trilogy) is that, in deciding whether the parties have agreed to submit a partic- ular grievance to arbitration, -23- a court is not to rule on the potential merits of the under- lying claims. Whether "“argu- able" or not, indeed even if it appears to the court to be frivolous, the union's claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity ina particular claim, or determin- ing whether there is particular language in the written instru- ment which will support the claim. The agreement is to submit all grievances to arbi- tration, not merely those which the court will deem meritori- ous.* American Mfg. Co., 363 U.S. at 568 (footnote omit- ted). Ironically, the Third Circuit Court - of Appeals has had a number of opportuni- ties to apply the unequivocal language of this Court in the Steelworkers Arbitra- tion Trilogy to deny claims that the judiciary should meddle in the arbitra- tion process when a party states that a current arbitration is, or should be, governed in whole or in part by a previ- ous arbitration award. The leading case in the Third Cir- cuit specifying the respective role of the judiciary and the arbitrator in such circumstances is Local 103, IUE v. RCA Corp., 516 F.2d 1336 (3rd Cir. 1975). | In that case, the arbitration provi- sion actually provided that, "{i]Jn no event .. . shall the same question [or issue] be the subject of arbitration more than once." Id. at 1338. A dispute arose in 1971 concerning a job classifi- cation decision.’ The Union claimed that the 1971 issue had been previously decid- ed in a 1946 arbitration award. The Union then suspended its participation in the 1974 arbitration regarding the 1971 grievance and sought to enjoin RCA's -25- further arbitration efforts. The dis- trict court "held that the question or issue presented and resolved in 1946 was. not identical to the question or issue presented in 1971," Id. at 1339, and thus dismissed the suit. The Third Circuit held: Although we affirm the judgment of the district court, we do so for a different reason: It is the function of the arbitrator, not the court, to decide wheth- er the "same question or issue" had been the subject of arbi- tration within the meaning of the collective bargaining agreement. 74. @& i2save By so holding, the Court expressly disassociated itself from the “strict identity" test utilized by the District Court and arguably found in prior deci- sions of that Court. -26- In an oft-quoted epilogue to the Local 103, IVE case, the Court specifi- cally answered all of the claims by the respondents and the contention of the District Court in this case that the FAL pilots were attempting to "collaterally attack" the Nicolau award and relitigate the issues in that case in the _ Ross arbitration. The union evidences the fear that prior decisions will be relitigated ad infinitum pres- aging a demise in finality and opening the door to abuse. We disagree. Open to the’ union, before the arbitrator, is the same contention it has. pres- ented to the courts, i.e., that the "same question or issue" was previously "the subject of arbitration." So viewed, finality, consistent with the provisions of the agreement, will be preserved. 516 F.2d at 1341. The situation here is even more compelling than the Local 103, IUE case. Here, unlike that case, the LPA contained 4 } 4 S | | | no provision that issues previously settled in prior arbitrations should not be the subject of arbitration more than once. The LPA was totally devoid of any language concerning prior arbitration awards. To the contrary, the LPA specif- ically applied to pilots of air carrier subsidiaries of People Express, Inc. and the District Court specifically found that both PEX and FAL were such air carriers. The scope and charter of the LPA were broad. Absent agreement among the parties, the issue of pilot seniority integration was to be resolved in a "fair and equitable" manner through arbitra- tion. With the pilots of three carriers involved in the LPA arbitration, it was inevitable that one of the issues for the arbitrator was the impact or effect, if any, of the preceding Nicolau Award. Nothing in the Nicolau Award or the LPA -28- purported expressly or by implication to exclude from the arbitrator the issue of the impact or effect of that Award. There is, therefore, no evidence at all, much less "forceful evidence" of an intent to exclude the issue of the Nico- lau Award from the Ross Arbitration. Moreover, even if the "strict iden- tity" of issues test were still in place, the District Court's intrusion into the arbitration process would still be unau- thorized because the issues in the Nico- lau Award (the integration of FAL and CAL pilots ona single seniority list) were admittedly different than the issues in -29- the Ross arbitration (the fair and equi- table integration of the FAL, CAL and PEX pilots) .3 The Third Circuit reiterated the principles of the Local 103, IVE case, supra, in Westinghouse Broadcasting v. Local 804, 616 F.2d 97 (3rd Cir. 1980), where the Court, after noting the rubric that the issue of arbitrability is for the Court, not the arbitrator, stated: We did decide in Local 103 that it is for the arbitrator, and not the court, to decide wheth- er the question or issue pres-~- ented before an arbitrator in 1971 had previously been sub- mitted before another arbitra- tor in 1946. Id. at 100. 3 On this much, the FAL pilots and the District Court agree ("The question or issue before Arbitrator Ross was clearly not the same question or issue which was the subject of the Nicolau arbitration") (Appendix, Ppp. 49a-50a). -30- The next year, the Third Circuit once again revisited this issue in United Mine Workers of America v. Consolidation Coal Co., 666 F.2d 806 (3rd Cir. 1981). In that case, the union filed suit seek- ing to avoid arbitration and to enforce a prior "settlement agreement" between it and the company regarding the contracting out of repair and maintenance work. The Court held that the issue of the status of the prior settlement agreement was, itself, a matter for the arbitrator to rule upon, stating: Federal courts are bound to exercise the utmost restraint to avoid intruding on the bargained-for method of dispute resolution and when enforcement of an arbitration award or settlement agreement is sought under Section 301, the court must be able to. say "with positive assurance" that the award or settlement was intend- ed to cover the dispute. If the court has any doubt, the parties should be returned to \iintadidna seh thie on itive A their’ grievance procedure and arbitration, for it is an arbitrator, and not the court, who is to decide whether the same issue has already been resolved in an earlier proceed- ing. Id. at 811 (footnotes and citations omitted). In other words, the heavy burden on the respondents and the District Court was to find "positive assurance" from the Nicolau Award or the LPA that the Nicolau Award was intended "to cover the dispute" involved in the Ross arbitration. If the Court had “any doubt" on this matter, the issue of the effect of the prior Nicolau Award on the subsequent Ross arbitration should have been resolved by the arbitra- tor, “for it is the arbitrator, and not the court, who is to decide whether the same issue has already been resolved in an earlier proceeding." The practical difficulty of conclud- ing, as a matter of law, that a court has "positive assurance" that a prior arbi- tration award is binding upon a forthcon- ing arbitration becomes an impossibility when the Nicolau Award contains no refer- ence to future arbitrations and the LPA contains no reference to prior arbitra- tions. There is yet another line of cases in the Third Circuit holding generally that an arbitrator need not follow previous arbitrations.4 In Metropoli- tan Edison Co. v. NLRB, 663 F.2d 478 (3rd 4 Indeed, even Arbitrator Ross. noted that “arbitration decisions general- ly are reviewable by, and not bind- ing on, other arbitrators." Arbitrator Ross further found, however, the District Court's order in effect superceded this general rule and required him to give bind- ing effect to the Nicolau Award. Cir. -33- 1981), aff'd 460 U.S. 693 (1983), this Court held: The narrow issue before us is whether we are bound by the previous arbitrated interpreta- tions. We hold that we are not. Normally an arbitrator need not follow previous arbi- trations construing the same agreement. See New Orleans Steamship Association Vv. General Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980), cert. granted sub nom. Jack- sonville Bulk Terminals, Inc. v. International Longshoremen's Association, 450 U.S. 1029, 1013 & Ce. 1737, 68 L.Ed.2d 223 (1981); Riverboat Casino, Inc. v. Local Joint Executive Board, 578 F.2d 250, 251 (9th Cir. 1978) (to require adher- ence to previous arbitration would reduce flexibility of the arbitral process). It follows that when this court is called upon to construe a collective bargaining agreement, it need not follow a previous arbitral interpretation. To bind this court to a contractual inter- pretation made ina _ previous arbitral award would not be consistent with what the par- ties bargained for: arbitra- tion as a dispute resolution process for specific griev- ances. See NLRB vy. Pincus Brothers, Inc.-Maxwell, 620 F.2d 367, 374 (3rd Cir. 1980). Id. at pp. 483-84. Here, the general rule applies because the arbitration agreement (the LPA) “does not provide that one arbitra- tion is to be bound by an earlier deci- sion" (Ibid.). The Third Circuit in Butler Armco Independent Union v. Armco, Inc., 701 F.2d 253 (3rd Cir. 1983), brought togeth- er the two strands of its Local 103, IUE line of cases with the Metropolitan Edison line of cases. In that case, the union sought to enjoin the Company's action in consoli- dating seniority units based upon a prior arbitration award allegedly prohibiting such action and a provision in the griev- ance/arbitration agreement prohibiting fee Rebel Rot Coon GaP RA Pa ot Ke a te FS Fe re-arbitrations of the same issue or dispute. The Court held that: Although not entirely free from doubt, it appears that the union relies on two theories. First, it maintains that’ the current dispute is not arbitra- ble simply because the same issue has been resolved ina prior arbitration. This argu- ment would appear to be fore- closed, however, by our holding in Metropolitan Edison v. NLRB, 663 F.2d 478 (3rd Cir. 1981), cert. granted, 457 U.S. 1116, 102 S.Ct. 2926, 73 L.Ed.2d 1327 (1982), that, absent contractu- al language to the contrary, one arbitrator's interpretation of a collective bargaining agreement is not binding on a subsequent arbitrator. Second, the union urges that the rear- bitration clause in the con- tract renders the current dispute not arbitrable. Id. at p. 255. The Court then held that the second argument was foreclosed by the Local 103, IUE case, noting that in that case the arbitration agreement also contained "a broad ban on re-arbitration" (Ibid.). As -36- noted above, the language of the arbitra- tion agreement in this case contains no language prohibiting re-arbitration of prior arbitration awards. It is totally Silent on this point. The decisions of other circuit courts of appeal have generally adopted the same rule onthe effect of prior arbitration awards on a subsequent arbi- tration. For example, in Little Six Corp. v. UMW, 701 F.2d 26, 29 (4th Cir. 1983), the Court held: Not only do the Company's authorities wilt under examina- tion, but there is solid, well- reasoned case law holding that the preclusive effect of a prior arbitral award is itself a question for arbitration. In addition to the Third Circuit cases mentioned above, the Fifth Circuit has stated that "(wjhether [a prior] award can be given an effect akin to res judicata or state [sic] decisis with regard to future disputes -». neither the district court nor this court should decide. If the parties do not agree, that issue itself is a proper subject for arbitration." New Orleans S.S. Ass'n v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980), aff'd sub nom. Jacksonville Bulk Terminals, Inc. Vv. Int'l. Longshoremen's_ Ass'n., U.S. __. 462 S.Ct. 2673, 73 L.Ed.2d 327 (1982). The First Circuit also has endorsed this position in a recent decision. See Boston Shipping Ass'n v. Int'l. Lonashoremen's Ass'n, 659 F.2d 1 (ist Cir. 1981). The dis- trict court below in the pres- ent case considered the question and adopted the view of the Third and Fifth (and now First) Circuits. We agree. In Westinghouse Elevators v. SIU de Puerto Rico, 583 F.2d 1184 (lst Cir. 1978), the: First Circuit specifically rejected an argument that a subsequent arbitrator was bound by the decision of a previous arbitrator. The rationale of that court rested on a classic arbitra- tion case? defining the difference 5 Federal Bearings Co., Inc., 22 L.A. 721, 725-727 (1954). -38- between arbitration awards and judicial precedents: Prior awards do not con- stitute "judicial precedents" in future cases, unless’ the parties agree that they should. The legal doctrine of "judicial precedents" does not apply to the arbitration process. It prevails under the "common law" judicial system. That legal doctrine, in effect, cautions the courts against declaring wrongful that which custom and usage has sanctioned and which the weight of judicial authori- ty has approved. Under that doctrine, legal principles of contract construction, which have been distinctly enunci- ated, have been given the force of law. Court decisions and judgments are thereby accorded authoritative weight as "legal precedents" in determining Similar principles in future cases. Arbitrators' awards do not have a corresponding authority or force; they are not accorded the weight of "judicial author- ity* in determining future controversies, even between the same parties or over the same issues. e e not u- sive or binding upon an arbi- trator in subsequent cases. In arbitration, all questions of BATT. SOPRA OOD Chm ~, -39- fact and law are deemed to be referred to the arbitrator for decision. Unless restricted by the contract, or submission agreement, or an applicable state statute, the arbitrator is not bound by the strict rules of law or evidence. As . long as the arbitrator keeps within his jurisdiction, he can decide the issues submitted to him, notwithstanding any prior awards between the parties, unless the parties have agreed otherwise. 583 F.2d at 1187 (emphasis added). Accord, Connecticut Light & Power Co. v- Local 420, IBEW, 718 F.2d 14, 20 (2d Cir. 1983) ("Principles of stare decisis and res judicata do not have the same doc~ trinal force in arbitration proceedings as they do in judicial proceedings") ; Riverboat Casino, Inc. v. Joint Executive Bd., 578 F.2d 250, 251 (9th Cir. 1978) ("Absent a provision in the contract to the contrary, the arbitrator could rea- sonably conclude that strict adherence to stare decisis would impair the flexibili- ty of the arbitral process contemplated by the parties"). In a more recent case, the Seventh Circuit Court of Appeals in Local 504 v. Roadmaster Corp., 916 F.2d 1161, 1162 (7th Cir. 1990), ruled that a company's claim that it would not arbitrate a claim because of the "res judicata" and "pre- clusion by prior judgment" doctrines was a “piffle." As that Court stated: Arbitrators frequently inter- pret the scope and binding effect of earlier arbitral decisions. The fact that the Nicolau Award was, in accordance with the agreement preced- ing it, to be "final and binding" on the parties to that award does not provide "the most forceful evidence" that it should have been given preclusive effect by the district court in the Ross arbi- tration. This same issue was presented to the Second Circuit in Transit Mix Concrete Corp. v. Local 282, $09 F.2d 963 (2a Cir. 1987). There the Court stated: (S]ince the arbitration clause encompasses the present dis- pute, it follows that the present dispute is arbitrable. Since the arbitration clause makes arbitrable any dispute "Concerning the interpretation [or] application" of the CBA, it follows that questions as to the applicability of the final- ity clause -- in the sense of whether the Lippman award adjudicated the issues raised in the present dispute -- or as to its effect -- in the sense of the res judicata effect of the Lippman award -- are as- signed, at least in the first instance, to the Panel or the impartial arbitrator. Under these circumstances, we find it neither necessary nor appropri- ate for us to decide the ex- tent, if any, to which the Lippman award resolved the issues in the present dispute. -42- Id. at p. 969-970 (footnotes and cita- tions omitted). The Court cited the Butler Armco case, supra, as a "persuasive" precedent for its holding. ® The decision of the District Court on this issue was as curious as it was indefensible. After noting the holdings of this Court in the Local 103, IVE and Westinghouse Broadcasting cases, the District Court stated: The above Third Circuit cases relied upon by Frontier are clearly distinguishable from this case. The question or 6 See also Hotel Ass' f Washington Vv. Hotel & Restaurant Employees Union, F.2d (>.¢. Car. 4/28/92) ("The ‘final and binding' Clause does not so unequivocally import the principle of precedent into arbitral decisionmaking that Arbitrator Cass was obliged express- ly to consider it lest his decision fail to draw its essence from the contract"). (oe Ph at tin Sct in ss -43- issue before Arbitrator Ross was clearly not the same ques~ tion or issue which was’ the subject of the Nicolau arbitra- tion. The issue before Arbi- trator Nicolau was the integration of the FAL pilot seniority list with the Conti- nental pilot list after the merger. The issue before Arbitrator Ross was the inte- gration of the PEX pilots with the list of Continental and FAL pilots comprised [sic] by Arbitrator Nicolau. (Appendix, pp. 49a-50a) The answer to this observation is that to the extent the dispute or issues in one arbitration differ from those in a prior arbitration, there should be less judicial meddling in terms of binding a subsequent arbitrator by the terms of prior arbitration than is the case where there is an alleged "strict identity" of issues between the prior arbitration and the subsequent arbitration. -44- The real thrust of Judge Politan's decision in this respect was his determi- nation that he would not allow the FAL pilots to engage ina "collateral attack" on the Nicolau Award. (Appendix, p. 51a) But, as is evident from the line of Courts of Appeals cases previously cited, every party -- whether labor or manage- ment -- who believes it has_ been the recipient of a favorable prior arbitra- tion award will seek the federal court's help on the basis of avoiding "relitiga- tion," or "collateral attacks" on the prior favorable arbitration ruling. And the consistent answer of the Courts of Appeal has been to tell the parties that they may argue the issue of collateral attack or relitigation to the arbitrator, but is is not for the court to decide. If a party could involve the federal Rill LINE OMIT tt Ae Sd TOMAR NS A A tt judiciary in determining the effect of a prior arbitration award on a subsequent arbitration by invoking the accusation of "Collateral attack" or "relitigation," the federal courts, contrary to consis- tent rulings of the Courts of Appeal, would be in the business of regularly determining the effects of prior arbitra- tion awards on subsequent arbitration proceedings. This is a burden the feder- al judiciary should not have to bear. The error of law by the District Court had a clear and dramatic effect on the outcome of the Ross Award. In the post-hearing but pre-decision meetings of the technical support committee, Arbitra- tor Ross made the following observa- tions: FAL pilots should have _ been treated better by Nicolau. If I were comparing equities, I would have to come down on the side of the FAL captains. No -~46- comparison, the FAL pilots have higher equities. ... Were it not for the restraints on us, I {Ross} would have treated the FAL pilots differently. In other words, Bob [Williams], you look at what the FAL guys had, their length of service, their turnkey operation, they had as far as I'm concerned -- if I would have been George Nicolau .. . they [FAL] captains would have been treat- ed better. If I would be free to apply the fair and equitable standard to -you guys [FAL], you bet you ass you'd be up higher, but they won't let me move you. The Court won't let me move _ you up. If one were to seek a textbook example of a clear cut case of judicial interference with the bottom line result of a labor arbitration proceeding, it would be hard to imagine a stronger case than the present one. As the quotes of Arbitrator Ross demonstrate, the District Court's re- quirement that the FAL pilots be bound by the prior Nicolau Award resulted in the FAL pilots being deprived of the only orum in which their seniority equities could be compared on a fair and equitable basis with the seniority equities of the PEX pilots. Far from seeking a “second bite at the apple" the District Court effectively prevented the FAL pilots from their first and only bite at the apple of FAL/PEX pilot equity comparison which the FAL pilots were unequivocally promised under the LPA as pilots of "an air carri- er subsidiary at People Express, Inc.” Ee To Protect The Integrity Of The Arbitration Process And The Parties To It, This Court Should Direct The Federal Courts To Uphold Court Imposed Bans On Ex Parte Communications Between Arbitrators And Parties To Arbitrations And Resolve A Conflict Between The Third Circuit And The Ninth Circuit Court Of Appeals As noted in the statement of the case, the District Court ordered a spe- cific prohibition on contacts between the arbitrator andthe parties. The ban by its terms did not apply to such contacts only when they were shown to prejudice a party. Such contacts were banned uncon- ditionally. This blanket prohibition of communi- cations goes well beyond the admonitions la steidigeaits, aig Am bate BoC Nb BF Na A ON = Eh NA Cee De -49- contained in 9 U.S.C. § 10(c) where the Arbitration Act provides for the vacation of an arbitration award when the “arbi- trators were guilty of ... any misbe- havior by which the rights of the party have been prejudiced." Under even this obviously less rigorous statutory stan- dard, Courts of Appeal have vacated arbitration awards where the arbitrators have engaged in ex parte communications. Totem Marine Tug & Barge _ v. North Am. Towing, 607 F.2d 649, 653 (Sth Cir. 1979). See also, U.S. Lines v. Federal Maritime Commission, 584 F.2d 519, 539 (D.C. Cir. 1978). In some 9 U.S.C. § 10(c) cases in which communications have been involved, the courts have required the party urging rejection of the award to show that the communication prejudiced them. See, e.g., Mutual Fire, Marine & Inland Ins. Co. v. Norad Reinsurance Co. Ltd., 868 F.2d 52 (3d Cir. 1989). While we will demonstrate below that the communication prejudiced the FAL pilots, it should be clear from the outset that the unequivocal order against contacts in Para. II.8(c) of the District Court's order did not require a showing of prejudice. If it did, the order should have contained a second proviso stating words to the effect "and provided further that any party may communicate directly with the arbitrator so long as no other party is prejudiced by such communication." In this background, the District Court found during oral argument on the cross motions to confirm and reject that "In my judgment, the arbitrator -- seems to me had an ex parte conversation." Yet the District Court ignored its own order banning ex parte contacts by citing the self serving letter of the arbitrator and the affidavit of the PEX pilot represen- tative that their meeting related only to the continued participation of the PEX Committee in the arbitration process, and that: There is absolutely no evidence before this court to indicate that the conversation between Captain Mackenzie and Arbitra- tor Ross related to the sub- stance of what transpired at the Technical Advice Committee meeting. Appendix, p. 32a. The undisputed evidence, as shown in the statement of the case, disclosed that immediately after the meeting the Arbi- trator announced to the parties that he had reached a conclusion on two issues vitally affecting the Frontier pilots and both decisions were detrimental to the interests of the Frontier pilots and favored the interests of the People Express pilots who engaged in the con- tact. The District Court simply ignored this compelling evidence. Finally, the District Court erred in stating that "this conversation was in full and open view of the other parties' representatives" (Appendix p. 33a). Only lay persons attended the technical sup- port committee hearings. The evidence was that Captain Mackenzie and Mr. Ross conducted the meeting in a room by them- selves with the door closed with no other parties invited. To suggest that other lay persons observing this conduct should barge into the room where this private conversation was going on is ludicrous. The view of the District Court and the Third Circuit that there must be direct evidence that the neutral and the party discussed issues under litigation ———EeEeEeEEeE~ — -53- is in sharp conflict with a recent deci- sion of the Ninth Circuit rendered after the decision of the District Court, but before the decision of the Third Cir- cuit. In Pacific & Artic Ry. & Nav. CoO. Vv. United Transportation Union, 952 F.2d 1144 (9th Cir. 1991), the Court dealt with the issue of an xX parte contact between the arbitrator and a representa- tive of one of the parties. The Ninth Circuit first noted: As one would expect, no direct proof exists that Levin [party representative] talked to Sempliner {arbitrator] about the merits of the case. 952 F.2d at 1148. Notwithstanding the foregoing, the Court nevertheless held that: Even if Levin and Sempliner did not discuss the merits of the case, their ex parte contacts afforded Levin an opportunity sccm iii -54- to probe Sempliner's mood and general attitude and then to prejudice Sempliner. 952 F.2d at 1149. There is an obvious conflict between the ex parte standard espoused by the Ninth Circuit (no need for direct evi- dence of discussion of merits) and that adopted’ by the Third Circuit (direct evidence required that merits of litiga- tion were discussed). The preferable standard is that adopted by the Ninth Circuit. A ban on ex parte contacts should be just that. If this Court were to adopt the Ninth Circuit's standard, it would avoid the parties to the ex parte contact seeking to excuse their prohibited behaviour on the basis of self-serving affidavits and 7 The parties briefed the Pacific & Artic Ry. case to the Third Cir- cuit. -55- letters disclaiming discussions of the merits of the litigation. As the Ninth Circuit correctly noted, there is seldom direct proof of what was discussed in an ex parte meeting. The whole purpose of a ban on ex parte contacts is to avoid impropriety and the appearance of impro- priety. Since the existence of ex parte contacts is a continuing issue in the field of arbitration, it would be ex- tremely helpful to the process if this Court were to adopt the Ninth Circuit's standard on ex parte contacts in labor arbitration. Finally, if the federal judiciary signals to parties to labor arbitration that it will not enforce its own ban on ex parte contacts, the "law" of arbitra- tion will return to the law of the jungle where anything goes, especially ex parte communications, and the only "rule" will be which party can out-ex parte the other parties. To protect the integrity of the arbitration process and the parties who agree to arbitration as the preferred method of resolving labor disputes this Court should adopt the standard of the Ninth Circuit and enforce agreements and orders against ex parte contacts. Conclusion Since this Court -declared over thirty years ago that arbitration was the favored method of resolving labor dis- putes, and since strikes have largely lost their efficacy,® arbitration has increased as the alternative dispute 8 See, e.g., Washington Post, 7/5/92, p. H1, article entitled, "Labor Loses the Strike as a Weapon." -57- resolution process. Now that arbitration has come of age and millions of workers and their employers are bound by its results, the time has come to settle two recurring problem areas. The many cases cited in this brief amply demonstrate that the issue of the "binding" effect of prior arbitration awards on subsequent arbitrations has been a recurring problem over the past two decades and should be definitively addressed by this Court in order to terminate once and for all attempts to involve the federal judiciary in the merits of labor disputes by arguing that subsequent arbitrators should be "bound" by the results of prior arbitration awards. Equally important to the arbitration process and to the millions of Americans who are bound by its results is the -58- preservation of basic fairness in the process by enforcement of court ordered bans on ex parte contacts. Since the Third and Ninth Circuits have different standards for enforcing the ban on ex parte contacts, this Court should resolve the conflict by adopting the Ninth Cir- cuit standard that the ban should be enforced even if there is no direct proof that the ex parte contact involved the merits of the case. This will go a long way toward restoring confidence in the integrity of this increasingly used method of resolving labor disputes. -59°- A petition for certiorari should issue to review the judgment of the Third Circuit. Respectfully submitted, John A. McGuinn Counsel of Record Schmeltzer, Aptaker & Shepard Suite 1000 2600 Virginia Avenue, NW Washington, D.C. 20037 Attorney for the Petitioner, The Frontier Pilots Litigation Steering Committee, Inc. APPENDIX -la- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY PEOPLE EXPRESS PILOT MERGER COMMITTEE, : CIVIL ACTION ¢ NO. 87-1155 Plaintiff, Vv. : HON. NICHOLAS H. POLITAN TEXAS AIR CORP., et al., Defendants. ORDER COMPELLING ARBITRATION OF THE INTEGRATION OF PILOT SENIORITY LISTS OF CONTINENTAL AIRLINES, PEOPLE EXPRESS AIRLINES AND FRONTIER AIRLINES PURSUANT TO THE PROVISIONS OF THE LABOR PROTECTION AGREEMENT Le Introduction These procedures will govern the pilot seniority integration process for the pilot work forces of Continental Airlines ("Continental"), Peoples Express Airlines ("PEX") and Frontier Airlines ("FAL") . -2a- II. Seniority Integration Procedures is Section of Committees. Within 30 days of the date set forth below, the People Express Pilot Merger Committee shall select a seniority integration committee of five members and one alter- nate. The Continental Pilots Merger Committee shall similarly select a conm- mittee of five members and one alternate. The Frontier Pilots Litigation Steering Committee shall also select a committee of five members and one alternate. The alternates shall participate fully in all aspects of the process set forth below to enable a smooth andtimely transition should a member become unable to continue serving. The Frontier Pilots Litigation Steering Committee's participation in this arbitration shall be circumscribed by the Final Award of Arbitrator George -3a- Nicolau, dated June 15, 1987. FAL may not assert a position inconsistent with that Arbitration Award but shall, for the purposes of tnis arbitration, be deemed bound by that award. The Award of Arbi- trator Nicolau is currently under appeal. In the event, at any time prior to the Final Arbitrator's Award in this matter, the decision of Arbitrator Nicolau shall be reversed or modified, any party may make application to this Court, on short notice, to consider the impact of that determination upon this arbitration proceeding. ai Exchange of Data. Within 60 days of the date set forth below, the committees together with Continental shall meet at a mutually agreeable place and time for the purpose of exchanging seniority data. No later than that date, Continental shall provide each committee -4a- seniority lists of all pilots as of September 15, 1986, March 12, 1987 and June 1, 1989, which include date of birth and date of hire (that is, the date used by the Continental, FAL and PEX pilots for monthly and system bidding purposes) of former PEX, FAL and Continental pi- lots, including seniority lists with date of hire of pilots at each base, and base staffing lists showing each pilot's aircraft and status as of September 15, 1986, March 12, 1987, and June 1, 1989. By that date, Continental will also . supply each committee with the W-2 earn- ings and common stock or other securities received as compensation for services for each pilot on any of the foregoing lists for the calendar years 1984, 1985, 1986, 1987 and 1988. By that date, Continental shall also supply each committee with the furlough and strike and leave of absence | ; | 5 5 | 3 -5Sa- dates for each pilot on any of the fore- going lists, together with his/her ad- justed longevity date. By that date, Continental shall also furnish the com- mittees with a list of each Continental pilot's status under the rulings regard- ing Continental of the U.S. Bankruptcy Court for the Southern District of Texas, including rulings on appeals therefrom, including whether he/she is an Option 1, Option 2 or Option 3 pilot, as well as any copies of any rulings of the Bank- ruptcy Court, and rulings on appeal therefrom, pertaining to him/her for seniority purposes. If any committee has any questions about the accuracy or completeness of the lists, Continental will promptly investigate and resolve them. The Committee and Continental shall meet to resolve any questions regarding pilot employment data within 90 -6a- days of the date set forth below. Any committee may file with the Court a motion on short notice if there remains disagreement regarding the adequacy of the information provided. For purposes of seniority list integration only, the neutral may resolve any employment data issues as to which all parties cannot agree. Continental is not required to produce any information not within its possession, custody or control. 3. itia e s. Within 100 days of the date set forth below, the committees shall attempt to reach agree- ment upon a fair and equitable integra- tion of the seniority lists of the pilot groups. Barring agreement by majority vote of each committee within 130 days of the date set forth below, the parties shall attempt to reach agreement on a neutral third party who shall serve as a -J7a- binding arbitrator. If the parties fail to reach agreement, any committee may petition the national office of the American Arbitration Association ("AAA") to furnish a list of seven arbitrators who are members of the National Academy of Arbitrators experienced in airline labor relations to the committees. The committees shall select an arbitrator from said list by alternate striking (an equal number of strikes for each commit- tee) within five (5) days of receipt from the AAA. 4. Hearing before Neutral. Within 160 days from the date set forth below or as soon as the neutral is available, the neutral shall preside over a hearing during which each pilot group and Conti- nental may present evidence and argument in support of its proffered method of -8a- integration. The hearing shall be con- ducted as expeditiously as possible with all due dispatch. There shall be no limit on the number of expert or other witnesses any party may call so long as they do not unduly burden the record. The parties shall have the opportunity to submit briefs following the hearing. The proceeding shall be transcribed by a certified court reporter, who shall supply the original to the neutral and a copy to each committee and Continental. The cost of the original transcript and copies shall be paid by Continental. The arbitration hearing will be held in “Washington, D.C. or in another loca- tion(s) mutually acceptable to the com- mittees and Continental. 5. Factors to be Considered by Neutral; Information for Conferences/ Hearings. The neutral shall consider any Re -9a- factor relevant to a fair and equitable integration of the seniority lists of the People Express, Frontier and Continental pilots. The parties are free to urge the neutral to consider any factor, and put in evidence any support, that they be- lieve is relevant to this standard. Upon request by any committee or the neutral, Continental will provide such information as is reasonably available to it, and is necessary to the process. However, except for the information identified in Paragraph II.2 above, Continental shall not be required to provide any informa- tion which is not a matter of public record; provided, however, that prior to the commencement of the arbitration, the neutral shall conduct a prehearing con- ference to resolve any outstanding proce- dural or evidentiary disputes, . including any outstanding requests for information. -10a- At this conference or during the hearing, the neutral may also rule on requests for information deemed confidential by Conti- nental and motions by any party to have such information, if deemed confidential by the neutral, to be received under an appropriate protective order issued by the neutral and, if admitted into evi- dence, admitted under seal. Continental shall not provide information to one pilot group unless:it provides the same information to all committees in the same form. The information identified in Paragraph 2 shall be treated confiden- tially. 6. Decision by Neutral. Within 45 days of the conclusion of the hearing, the neutral shall resole all open issues previously unresolved by the committees and Continental, and will simultaneously issue a written opinion explaining the -lia- basis for his/her decision. The decision of the neutral shall be final and binding on the committees, their respective pilot groups, and Texas Air Corp., Continental Airlines, Inc., People Express, Inc., ‘People Express Airlines, Inc., and Fron- tier Air Lines, Inc. FP Conditions on Integrated List. The integrated pilot systems’ seniority list to be preduced under these proce~ dures shall be subject to the following condition: the integrated list shall not alter or vary Continental's employment policy. 8. Miscellaneous. a. Fees and Expenses of Nev- tral. The party or parties who are to bear the fees and expenses of the neutral shall be determined by the Court after the arbitration. -12a- b. Release from duty and expenses of Committee Members. Continen- tal shall approve all releases from flight and other duty that are required by the respective committee members and alternates and witnesses in order that they may perform their duties hereunder. Said releases shall be approved for all meetings and arbitration hearings refer- red to hereinabove, as well as prepara- tion related thereto. Continental shall pay all flight pay loss of the respective committee members and alternates result- ing from participation in the seniority integration process up to a maximum of 85 hours of flight pay plus $250 per month per diem. Continental will provide the committee members and alternates with fee-waived PS-5 passes for travel re- quired in connection with the seniority integration. ‘ -13a- c. Communication with Neutral. Neither Continental nor the committees may communicate with the neutral, either formally or informally, outside the presence of the other parties, except in writing, with copies to the other par- ties, provided, however, that any party electing not to be present for a meeting or hearing date waives any right to be present for such communications. da. Attendance at meetings and hearings and exchange of documents. Continental may send representatives to all meetings and arbitration sessions. In addition, Continental will be timely furnished with copies of ail documents exchanged between the committees. In no event shall any final solution be reached which is not acceptable to each committee (by majority vote), unless such solution - -14a- ; is imposed by the Neutral provided for herein. } e. Financial Assistance. Continental shall not either directly or indirectly aid financially one pilot group unless it agrees and does provide the identical level of financial assis- tance to all pilot groups; the pilot seniority integration committees’ shall not either directly or indirectly receive any financial assistance from sources outside the company, including ALPA, and shall report to the Court any such funds received after April 24, 1989, provided, however that each committee may receive contributions from the pilots whom it is representing. III. Retention of Jurisdiction. The Court retains jurisdiction over this matter, and within: 10 days of the -13a- arbitrator's written decision, the par- ties shall submit it to this Court, and any party may apply to the Court at that time for affirmance, rejection, modifica- tion or such other action as it deems appropriate. At the same time, the parties shall submit to the Court the bill of the neutral for the Court to determine who shall bear the costs of the arbitration. It is so ordered, at Newark, New Jersey, this 7th day of August, 1989. Nicholas H. Politan United States District Judge 16a UNITED STATES DISTRICT COURT District of New Jersey NOT FOR PUBLICATION November 26, 1991 LETTER OPINION AND ORDER ORIGINAL ON FILE WITH CLERK OF THE COURT Andrew T. Berry, Esq. MC CARTER & ENGLISH 100 Mulberry Street Four Gateway Center Newark, NJ 07102 D.F. Moore Craig, Esq. 1129 Bloomfield Avenue West Caldwell, NJ 07006 Jesse H. Strauss, Esq. REITMAN, PARSONNET, MAISEL & DUGGAN 744 Broad Street Suite 1807 Newark, NJ 07102 Michael J. Madigan, Esq. AKIN, GUMP, STRAUSS, HAUER & FELD 1333 New Hampshire Avenue, N.W. Suite 801 Washington, D.C. 20036 Dennis F. Gordon, Esq. Frank Petramola, Jr., Esq. GORDON & BARNETT 1133 21st Street, N.W. Suite 450 Washington, D.C. 20036 17a William H. Sudell, Jr., Esq. MORRIS, NICHOLS, ARSHT & TUNNELL 1201 N. Market Street P O Box 1347 Wilmington, Delaware 19899 Jonathan D. Forstot, Esq. Christopher Graham, Esq. THACHER, PROFFITT & WOOD Two World Trade Center New York, NY 10048 John A. McGuinn, Esq. SCHMELTZER, APTAKER & SHEPARD, P.C. The Watergate 2600 Virginia Ave., Northwest Suite 1000 Washington, DC 20037 Re: Peoples Express Merger Committee, etc. v. Texas Air Corporation, et al Civil Action No. 87-1155 Dear Counsel: This matter comes before the court on plaintiff Peoples Express Pilot Merger Committees ' ("PEX Pilots") motion to affirm and enforce the August 13, 1991 arbitration award issued by Arbitrator Jerome Ross. Defendant-Intervenor Fron- tier Pilots Merger Committee ("Frontier") ~ 18a . has cross-moved to reject the arbitration award. In response to the cross-motions filed by the PEX Pilots and the Frontier Pilots to affirm/reiject the arbitration award, defendant Continental Airlines, Inc. ("Continental") takes the position that this court should affirm and enforce the arbitration award. In addition, the Continental Pilots Merger Committee has filed an application for an order direct- . ing Continental to bear all fees and expenses which have been billed by Arbi- trator Jerome H. Ross in connection with the arbitration conductee pursuant to the 19a August 7, 1989 order.1 I heard oral argument on November 18, 1991 and re- served decision. For the reasons out- lined herein, the PEX Pilots' motion is GRANTED and the arbitration award is AFFIRMED. In an Order dated August 7, 1989, I compelled arbitration of the integration of the Pilot Seniority Lists of People Express Airlines, Continental Airlines, and Frontier Airlines pursuant to the provisions of the Labor Protection Agree- ment (the "LPA"). The relevant provi- sions of the LPA provide as follows: [I}]n the event of a future merger of airline operations involving any air carrier 1 On October 2, 1991, the U.S. Bank- ruptcy Court for the District of Delaware issued an order lifting the automatic stay provision of 11 U.S.C. § 362 for purposes of permitting this court to act upon applications filed pursuant to 3 of the August 7, 1989 Order, including - applications regarding responsibility for «the Arbitrator's fees and expenses. CO 20a subsidiary of People Express, Inc., provision shall be made for fair and equitable seniori- ty integration procedures for affected employees in each craft or class, which shall include as a final step, if necessary in the absence of agreement, a final and binding decision by a Neutral Mediator who shall be a member of the National Academy of Arbitra- tors. Pursuant to my Order compelling arbitration, hearings commenced before Arbitrator Ross on May 7, 1990. Arbitra- tor Ross conducted 72 days of hearings and he reviewed extensive briefs and reply briefs submitted by the parties. The hearings were conclubed and the record was closed with oral arguments on April 29, 1991. On August 13, 1991, Arbitrator Ross rendered a 135 pege Opinion and Award integrating the Pilot Seniority List of People Express Air- lines, Continental Airlines, and Frontier Airlines. ‘ 21a I retained jurisdiction over this action pursuant to ¢ 3 of my Order com- pelling arbitration as follows: Be Retention of Jurisdiction The court retains juris- diction over this matter, _and within ten (10) days of the Arbitrator's written decision, the parties shall submit it to this court, and any party may apply to the court at that time for affirmance, rejection, modification or such other action as it deems appropriate. At the same time, the party shall submit to the court the bill of the neutral for the court to determine who shall bear the costs of the arbitra- tion. Pursuant to this provision, the PEX Pilot Merger Committee now moves to affirm and -enforce Arbitrator Ross' Award. The Frontier Pilots seek to reject the arbitration award based on 5 grounds. First, Frontier contends that Arbitrator Ross' Award discloses a manifest disre- gard of the Labor Protection Agreement 22a and the Order of this court enforcing that agreement. Specifically, Frontier submits that the Award is not the product of a fair and equitable seniority inte- gration procedure which the LPA man- dates. Second, Frontier maintains that the Award must be rejected because of an ex- parte communication between the Arbitra- tor and the Chairman of the PEX Pilot Merger Committee which constituted a Clear and direct violation of § 2.8(c) of this court's Order compelling arbitra- tion. Third, Frontier argues that the continuation of the hearing through the technical support committee violated the provisions of 4 2.4 of my order which required a transcript of the proceedings by a certified court reporter, and that 23a such hearings denied the assistance of counsel to the parties. Fourth, counsel for Frontier con- tends that Arbitrator Ross deprived the FAL pilots of counsel of their choice when he refused to adjourn certain hear- ing dates over the objection of FAL's counsel. Fifth, Frontier submits that the restriction placed by this court on the FAL pilots' participation in the Ross arbitration was contrary to the decisions of the Supreme Court and the Third Cir- cuit that District Courts should leave to arbitrators the issue of the effect of a prior arbitration award. The standards governing the court's review of a labor arbitration award are well known and extremely narrow. A court must enforce any arbitration award that “draws its essence from the collective 24a bargaining agreement". United Steelwork- Car Corp., 363 U.S. 593, 597 (1960). This standard reflects the policy in the federal courts of elevating labor arbi- trators to "an exalted status". Ludwig fe) eS Vv. etcher, 405 F.2d 1123, 1126 (3d Cir. 1969). Consequently, in reviewing an award, the court must begin its analysis’ by recognizing that the parties bargained for the arbitrator's construction of the agreement. See Enterprise Wheel, 363 U.S. at°599. A court may not, therefore, overrule an arbitrator simply because it disagrees with the arbitrator's construc- tion of the contract, see id., or because it believes its interpretation of . the contract is better than that of the arbitrator. See W.R. Grace & Co. v. Local 759, International Union of the 25a ite ubber Workers, 461 U.S. 757, 764 (1983). The Supreme Court has held that as long as the arbitrator has arguably construed or applied the contract, the award must be enforced, regardless of the fact that a court is convinced that the arbitrator has committed a serious error. See United Paperworkers International Union v. Misco, 484 U.S. 29, 36 (1987). The Third Circuit has elaborated upon this standard of review finding that, in order to upset an arbitrator's award, there "must be absolutely no support at all in the’ record justifying the arbitrator's determinations for a court to deny enforcement of an award." News America Publications v. Newark Typographical Union, 918 F.2d 21, 24 (3d Cir. 1990) citing, N_F & M Corp. _v- United Steelworkers of America, 524 F.2d 756, 760 (3d Cir. 1975)). Thus, only 26a where there is a "'manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award.'" Id. at 759 (quoting, Ludwig Honold Mfg. Co. Vv. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969)). In this regard, a court may not review the merits of the arbitral deci- sion. See Misco, 484 U.S. at 36. A court does not review the award to ascer- tain whether the arbitrator has applied the correct principles of law. See Enterprise Wheel, 363 U.S. at 598. An arbitration award may not’ be overturned for factual error, see Misco, 484 U.S. at 38, or because the court disagrees with the arbitrator's assessment of the credi- bility of witnesses, or the weight the arbitrator has given to testimony. See N F & M Corp., 524 F.2d 759. The test for 27a reviewing an arbitration award is, there- fore, "a singularly undemanding one." ewa ographical, 918 F.2d at 24. The court now turns’ to Frontier's first argument in opposition to the enforcement of the Arbitration Award, namely, that the award reflects a mani- fest disregard of the provisions of the Labor Protection. Agreement. Pursuant to the provisions of the Labor Protection Agreement, Arbitrator Ross was bound to apply a "fair and equitable" standard in rendering the award which integrated the Pilot Seniority Lists of Continental Airlines, People Express Airlines, and Frontier Airlines. Frontier contends that Arbitrator Ross failed to balance the equities of all three pilot groups by his own admission when he stated: The critical differences. be- tween the arbitral charters of the [Job Preservation Agree- ment} and the LPA require my EE 28a analysis to focus primarily on the relative equities of the: [Continental Airlines] and PEX pilots. (Arbitration Opinion at p. 117). Frontier submits that, instead of weighing the comparative equities of all three pilot groups on a fair and equita- ble basis, Arbitrator Ross "tilted the playing field" by stating that the "pri- mary" comparison would be between the Continental and PEX pilots. As_ such, Frontier maintains that Arbitrator Ross relegated the FAL pilots to a secondary role in this arbitration because of the Job Preservation Agreement and the Nico- lau Award which I previously held would be binding on the FAL Committee for purposes of the Ross arbitration. I find that Arbitrator Ross' award meets the "Singularly undemanding" stan- dard set forth by the Third Circuit Court 29a of Appeals in News America. The arbitra- tion award simply does not reflect a "manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop .. . ." Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969). To the contrary, 4a thorough review of Arbitrator Ross' opinion and award reveals that there is much support in the record justifying his determina- tions. A review of the record below discloses that Arbitrator Ross weighed a myriad of considerations bearing on the construction of a fair and equitable merged seniority list, including but not limited to, the economic viability of the respective carriers, the non-operating status of FAL and the limited employment prospects for the FAL pilots resulting therefrom, together with the protection EE 30a afforded the CAL pilots by virtue of their promotional expectations for air- craft on firm order or option to CAL as of September 15, 1986. (See Ross Opinion and Award at pp. 116-121.) The parties to this action bargained for Arbitration Ross' construction of what is "fair and equitable" under the circumstances. I cannot overrule the Ross Award simply because FAL disagrees with Arbitrator Ross' construction of the contract, or because FAL believes its interpretation of the contract is better than that of the Arbitrator. See W.R. Grace & Co. v. Local 759, International Union of the United Rubber Workers, 461 U.S. 757, 764 (1983). See also United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). Accordingly, Arbitrator Ross' Award must be affirmed. 31a ~~ The court now addresses Frontier's second argument, namely that the Arbitra- tion Award must be rejected because of an ex parte communication between the Arbi- trator and the Chairman of the PEX Pilot Merger Committee. Frontier essentially asks this court to upset an Arbitration Award which resulted from 72 days of hearings based on a half hour conversa~ tion between Arbitrator Ross and Captain Mac Kenzie, the PEX Committee Chairman. The only sworn testimony that the court has before it concerning what occurred during this half hour conversation is the affidavit of Captain Mac Kenzie and Arbitrator Ross' letter, which both attest to the fact that the conversation related to the continued participation of 32a ° the People Express Committee in the Subcommittee meetings. 2 There is absolutely no evidence before this court to indicate that the conversation between Captain Mac Kenzie and Arbitrator Ross related to the sub- stance of what transpired at the Techni- cal Advice Committee meetings. It is important to note that the arbitration hearings were concluded and the record was closed with oral arguments’ on April 29, 1991, while the conversation between Arbitrator Ross and Captain Mac Kenzie 2 In a letter dated August 13, 1991, Arbitrator Ross indicated that his dis- cussion with Jim Mac Kenzie "was limited to requesting that the People Express Committee continue participation in the SubCommittee meetings in the interest of promoting insight into the construction of the list, which in turn would lead to harmony among the pilot groups." Arbi- trator Ross further indicated that at no time did he "discuss the People Express Captain ratio in relation to the Frontier Pilots." 33a occurred on July 12, 1991. The conversa~ tion between Ross and Mac Kenzie took place during a break in the Technical Committee sessions, shortly after the People Express representatives on the Technical Committee distributed a letter declining to participate further in the Technical Committee meetings. Moreover, this conversation was in full and open view of the other parties' representa- tives. After 72 days of full and fair hearings conducted by Arbitrator Ross and the submission of some 17,000 pages of documents, it is baseless for Frontier to suggest that the Arbitration Award should be overturned because of this half hour conversation between Captain Mac Kenzie and Arbitrator Ross. The brief and limited discussion between Captain Mac ‘Kenzie and Arbitrator Ross clearly did not prejudice the Frontier Pilots so as 34a to deprive them of "a fundamentally fair hearing". See National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 841 (6th Cir. 1985). Frontier's third argument, that the arbitration award should be vacated based on the continuation of the hearings through the Technical Support Committee, must be rejected outright. Frontier argues that the continuation of support hearings violated the provisions of § 2.4 of this court's Order Compelling Arbitra- tion. G 2.4 of my arbitration order provides as follows: The proceedings shall be tran- scribed by a certified court reporter, who shall supply the original to the neutral and a copy to each committee and Continental. An issue apparently arose on March 2, 1991 concerning how Arbitrator Ross would handle the proceedings after he had 35a studied the briefs and decided the mat- ter. One of the parties suggested that, after arriving at a tentative decision, Arbitrator Ross should convene the par- ties to announce his’ proposed decision and to solicit the views of the parties and their respective counsel concerning his tentative award before it became final. Counsel for the FAL pilots op- posed this suggestion and, instead, urged Arbitrator Ross to form a committee of his choosing of the group of pilots "to flesh out any computer runs [he] would like to have done . . . after the award." (See transcript of arbitration proceed- ings at p. 16,689). The idea of "a technical support committee" arose from this debate. Arbitrator Ross voiced his desire fora committee of pilots ("other than coun- sel") "to look at a list that [he] put 35a together and to assist [him) in the technical aspects of drafting that list so that what finally comes out makes clear what it is that [he] want[s] done." Arbitrator Ross then emphasized that this process would take place after he had made his basic decision. (See transcript of arbitration proceedings at pp. 16,704- 705). Counsel for the PEX pilots agreed to participate in a technical support committee but advised against "a tenta- tive award program" with Arbitrator Ross announcing a proposed decision and solic- iting views from the parties as to that decision. (See transcript of arbitration proceedings at p. 16,706). In an effort to explain his inten- tions concerning the formation of a technical support committee, Arbitrator Ross clarified his position as follows: 37a I [am not] proposing any tenta- tive award. What I [am) pro- posing [is] me meeting with some technical people not for the purpose of arguing anything but simply for the purpose of translating into words what it is that I see as my decision sone I am not talking about giving anybody a chance to change it (the decision] after we get involved in a committee action after that. (See transcript of arbitration proceed- ings at pp. 16,707-16, 718). Arbitrator Ross further stated that the "tentative award/pilot advisory committee" concept was "such a signifi- cant deviation from what was contemplated by [this court's) order that the only way that [he] would feel comfortable doing it would be if [there was] unanimous agree- ment that it made some sense." (See transcript of arbitration proceedings at “pp. 90-95). Frontier contends that, despite the statements of Arbitrator Ross, the "technical support committee" sa 38a turned into a "de facto pilot advisory board" and the entire process was trans- formed de facto into a tentative award process. I disagree. Arbitrator Ross' utilization of a technical committee consisting of pilots representing each of the four parties in no way denied the Frontier pilots a fundamentally fair hearing. I note at the outset that Frontier did participate in the technical support committee meet- ings. In fact, all of the parties par- ticipated in the technical committee's post-hearing business, without objection, until the PEX participants forwarded a letter to Arbitrator Ross on July 12, 1991, announcing their withdrawal from the process. It was not until after the delivery of the PEX letter that the Frontier pilots first voiced an objection to the technical committee process. On 39a August 12, 1991, Frontier complained about the continuance of the technical support committee meetings, as well as the ex parte contact in a letter to Arbitrator Ross. Nonetheless, Frontier continued to participate in the technical support committee meetings up through and including the final stages. As previously stated, Frontier argued that the continuation of support hearings violated the provisions of 7 2.4 of this court's Order Compelling Arbitra- tion. However, Frontier did not come before this court at such time to assert that this action violated my previous order. At oral argument, Mr. McGuinn, counsel for Frontier, suggested that he was reluctant to seek relief from this court at that time because he thought his efforts would prove unsuccessful. This argument is without merit. Moreover, 40a counsel for Frontier should refrain from forecasting what this court would decide as to any particular issue not yet before it and should do what he or she is’ sup- posed to do to protect his or her cli- ent. Furthermore, Arbitrator Ross' utili- zation of the technical committee process proved to be both essential and effi- cient. For example, Arbitrator Ross used the technical committee process to re- solve the truly technical matters which had arisen during the post-hearing pro- ceedings, such as the question of how to deal with the 29 pilots who appeared on both the Continental and People Express Pilot Seniority Lists, but who returned to Continental prior to March 12, 1987, PL when Continental imposed its merged list. In the few technical sessions which occurred during the July 13-15 and August 4la 7-9 periods, the technical -support com- mittee assisted the Arbitrator in addres- sing this and other matters and helped devise the conditions and restrictions which became a part of the award. As the Frontier pilots themselves concede, counsel representing all four parties met with the Arbitrator on August 9, 1991 in an effort to discuss the legal implica- tions of the Frontier pilots' proposed pay protection and longevity credit conditions. (See Affidavit of John A. McGuinn, counsel for Frontier, dated August 21, 1991, at p. 3). Frontier contends that Arbitrator Ross arrived at the first meeting of the "technical support committee" with a tentative award that would have started .the PEX captain ratio with the top New York air captain, Charlie Bare, and would have matched the top 162 PEX downgraded 42a captains ina 1-for-1 ratio with the CAL pilots just junior to the most junior FAL captain. Frontier submits that, in the end, Arbitrator Ross changed his final award from his initial tentative award on June 14, 1991 in significant ways at different times during the technical committee process. Frontier argues that, instead of starting the first PEX captain at the first New York air captain, Char- lie Bare, Ross dropped the start of the PEX captain ratio with CAL captains several hundred numbers below Captain Bare, and instead of ratioing the down- graded 162 PEX pilots on a 1-for-1 basis with the CAL pilots just below the junior FAL captains, Ross “arbitrarily" selected a point about 150 numbers’ junior to the CAL pilot immediately junior to the most junior FAL captain-to start his ratio of 43a PEX downgraded captains and first offi- cers with the CAL first officers. (See Frontier's brief in support of its motion to reject the arbitration award at p. 29). It is significant to note that the Arbitrator's modifications of his ini- tially announced also adversely affected the senior 295 People Express captains, who dropped “several hundred numbers below Captain Bare" (the number 1 New York air pilot), but all 295 of these People Express captains started out and ended up senior to all Frontier pilots. -Clearly, the Arbitrator's change of position on this point during the techni- cal committee phase had no impact whatso- ever on any of the Frontier pilots. In addition, the parties could have not expected Arbitrator Ross to single-hand- edly manage the actual construction of a 44a merged seniority list containing more than 4,000 pilots from four different airlines. The technical support which Arbitrator Ross sought from the parties and their computers was both appropriate and necessary under the circumstances. The parties willingly agreed to provide such support and Frontier's eleventh hour objections are meritless. Accordingly, the continuation of the hearing through the technical support committee does not suffice as a reason for me to set aside Arbitrator Ross' award. The court now turns’ to Frontier's fourth argument, namely, that Arbitrator Ross deprived the FAL pilots of counsel of their choice when he refused to ad- journ a portion of the hearings. On September 21, 1990, counsel for the FAL pilots requested this court to order Arbitrator Ross to cancel certain hearing 45a dates when counsel for the FAL pilots could not be available. Specifically, counsel for FAL requested this court to postpone the arbitration hearings until May 1, 1991. I refused to intervene in an ongoing arbitration process and de- clined to grant the interlocutory relief requested at that time by an Order dated October 4, 1990. Although I have already ruled against the Frontier pilots on this point, I must emphasize that Arbitrator Ross permitted counsel for the Frontier pilots to cross-examine any and all witnesses he desired who had testified during his absence. Moreover, there is no merit in the Frontier pilot's argument that adding hearing days after May l, 1991, as they requested, “would have prejudiced no one". The parties consumed 46a several months in briefing and arguing the case after the hearings were con- cluded. If the conclusion of the eviden- tiary hearings was delayed until May, then the issuance of the Award would have been delayed for several months. This result would run contrary to the proposi- tion that arbitration proceedings provide for a prompt and efficient resolution of disputes. Accordingly, I will not over- turn the Arbitration Award on the basis of this argument. I now turn to Frontier's fifth argument, namely, that the restriction placed by this court on the FAL pilots' participation in the Ross Arbitration was contrary to Supreme Court precedent and Third Circuit decisions that District Courts should leave to arbitrators the issue of the effect of a prior arbitra- tion. Over the objection of the FAL . 47a pilots, I entered an Order, dated August 7, 1989, compelling arbitration which contained the following limitation on the FAL pilots: The Frontier Pilots Litigation Steering Committee's participa- tion in this arbitration shall be circumscribed by the Final Award of Arbitrator George Nicolau, dated June 15, 1987. FAL may not assert a position inconsistent with that Arbitra- tion Award but shall, for the purposes of this arbitration, be deemed bound by that award. The Award of Arbitrator Nicolau is currently under appeal. In the event, at any time prior to the Final Arbitrator's Award in this matter, the decision of Arbitrator Nicolau shall be reversed or modified, any party may make application to this court, on short notice, to consider the impact of that determination upon this arbi- tration proceeding. At this point, I note that the Nicolau Award which integrated the FAL pilots with the Continental pilots was ultimate- ly affirmed by the Colorado~* Supreme Court. 48a This argument for the rejection of the Ross Award is essentially a repeti- tion of the argument made before this court by the FAL pilots on May 11, 1989. Frontier relies on Local 103, IVE v. RCA Corp., 516 F.2d 1336 (3d Cir. 1975) as the leading case in support of its posi- tion that this court improperly restrict- ed the role of the FAL pilots in the Ross arbitration proceedings. In Local 103, a grievance challenging the company's right to institute new job classifications was premised upon a 1946 arbitration decision which required the company to first establish a job description. The union sought to enjoin the arbitration and specifically the company's right to contest the underlying merits. The Third Circuit addressed the issue of finality in arbitration awards with the following langvage: 49a The union evidences the fear that prior decisions will be litigated ad infinitum pres- aging a demise in finality and opening the door to abuse. We disagree. Open to the union, before the arbitrator, is the same contention it has pres- ented to the courts, i.e., that the ‘same question or issue’ was previously 'the subject of arbitration'. So viewed, finality, consistent with the provisions of the agreement, will be preserved. 516 F.2d at 1341. Subsequently, in Westinghouse Broad-~- casting Co., Inc. v. Local 804, 616 F.2d 97, 100, the Third Circuit stated, "we did decide in Local 103 [v. RCA] that it is for the arbitrator, and not the court, to decide whether the question or issue presented before an arbitrator in 1971 had previously been submitted before another arbitrator in 1946." The above ‘Third Circuit cases relied upon by Fron- tier are clearly distinguishable from this case. The question or issue before OO 50a Arbitrator Ross was clearly not the same question or issue which was’ the subject of the Nicolau arbitration. The issue before Arbitrator Nicolau was’ the inte- gration of the FAL pilot seniority list with the Continental pilot list after the merger. The issue before Arbitrator Ross was the integration of the PEX pilots with the list of Continental and FAL pilots comprised by Arbitrator Nicolau. In my view, to the extent that Arbitrator Nicolau integrated the FAL pilots with the Continental pilots, the FAL and the Continental pilots became one body. Essentially, they had the’ same interests to protect. They each had a position ona pilot seniority list which they had attained as a result of the Nicolau Arbitration Award. I refused to allow the FAL pilots to argue for a change of their position on the seniority 5la list vis-a-vis the Continental pilots in the arbitration proceedings before Arbi- trator Ross. If I permitted such con- duct, then I would be encouraging a collateral attack on the award issued by Arbitrator Nicolau before the Colorado Supreme Court could issue a final deter- mination on that award. However, I permitted the FAL pilots to participate in the Ross arbitration in an effort to allow them to protect what- ever position they had attained as a result of the Nicolau Award vis-a-vis the People Express pilots who were to be integrated by virtue of Arbitrator Ross! Award. Moreover, my order dated August 7, 1989, provided that any party may make application to this court, on short notice, to consider the impact, if any, of a reversal or modification of the ooo 52a Nicolau Award issued prior to the comple- tion of the Ross arbitration proceedings. Since the Colorado Supreme Court has already affirmed the Nicolau Award, I refuse to change my position and collat- erally overrule the Nicolau Award. Accordingly, I will not overturn the Ross Award on the basis of this argument. Counsel for FAL advanced two addi- tional arguments for the rejection of the Ross Arbitration Award at oral argument. First, the FAL pilots suggested that because they did not participate in the interim fee arrangement, Arbitrator Ross decided not to treat the FAL pilots fairly and equitably and that he became biased as to their position. This argu- ment is clearly without merit. My Order Compelling Arbitration, dated August 7, 1989, made no provision for payment of the fees and expenses of the arbitrator 53a on an interim basis. However, pursuant to 4 3 of that Order, I provided that: (Wjithin 10 days of the arbi- trator's written decision, ' the parties shall submit to the Court the bill of the neutral for the Court to determine who Shall bear the costs of the arbitration. Since I could impose the costs of arbi- tration on any one party or on all par- ties equally, I find it extremely difficult to believe that Arbitrator Ross would be partial or biased against FAL because it did not contribute to his interim fees. For FAL to suggest that Arbitrator Ross would link their destiny to the fact that they did not contribute to his interim fee structure is ridicu- lous and completely without merit. Secondly, FAL seizes upon one con- ment made by Arbitrator Ross during the course of over 72 days of hearings and Support Committee meetings in an effort bi | 54a to overturn the Opinion and Award. Specifically, FAL contends that Arbitra- tor Ross stated that "the FAL pilots would have been better off if they had stayed home". FAL apparently asks this court to focus on one off-handed comment made during the course of 72 days of heated and vigorously contested arbitra- tion hearings to conclude that Arbitrator Ross was partial and biased in his find- ings. I refuse to accept this conten- tion. The record speaks for itself and indicates that Arbitrator Ross rendered a fair and impartial decision. Accord- ingly, the Award must be AFFIRMED. THE ARBITRATOR'S FEES AND EXPENSES As previously stated, pursuant to § 3 of my Order Compelling Arbitration, dated August 7, 1989, I reserved the right to determine which parties would 55a bear the costs of arbitration. Continen- tal initially volunteered to bear all costs of arbitration. At such time, counsel for the PEX pilots indicated that Such an arrangement would lead to the appearance of impropriety. In an effort to preserve the integrity of the arbitra- tion process and to maintain the appear- ance of impartiality, I declined to impose all costs on Continental. I note that the relevant provisions of the Labor Protection Agreement con- cerning mergers provides as follows: In the event of a future merger of airline operations involving any air carrier Subsidiary of People Express, Inc., provision Shall be made for fair and equitable seniority integration procedures, for affected em- ployees in each craft or class, which shall include as a final step, if necessary in the absence of agreement, a final and binding decision by a Neutral Mediator who shall be a member of the National Academy of Arbitrators. 56a Now that the arbitration proceedings have been concluded and a fair and just Award has been rendered, I find that the fees for arbitration should be borne by Conti- nental as part of the costs of the merg- er. Accordingly, Continental will be responsible for Arbitrator Ross' fees and expenses in connection with the arbitra- tion as well as reimbursement of all interim fees and costs which have been expended to date by PEX or FAL. APPLICATION FOR A STAY PENDING APPEAL On November 25, 1991, FAL submitted an application, on short notice, for a stay pending appeal. If I were to grant a stay pending appeal from my Order Compelling Arbitration, it "would fly in the face of the strong federal policy in favor of arbitrating disputes in general ee 57a and labor disputes in particular." See, e.g-, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960). "Arbitration is supposed to be Swift." See Graphic Communications Union Vv. Chicago Tribune Co., 779 F.2a ee (7th Cir. 1985). These observations are equally applicable here. Accordingly, FAL'S application for a Stay pending appeal is hereby DENIED. SO ORDERED: NICHOLAS H. POLITAN U.S.D.J. 58a UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 91-5975 PEOPLE EXPRESS PILOT MERGER COMMITTEE Vv. TEXAS AIR CORP.; CONTINENTAL AIRLINES, INC.; PEOPLE EXPRESS, INC.; PEOPLE EXPRESS AIRLINES, INC. ; and FRANK T. SHANLEY; DAVID ROSS; H. F. MARONEY; A. G. SINIBALDI; GARY ARMENTROUT; BILL AUTREY; ANDY CASHETTA; H. A. COOPER; STAN CHALLGREN; BRIAN CRAVEN; JOHN GAYLORD; DON GENTRY; JOHN GIACCHI; DAVID HEEKEN; CHARLIE HIGDON; CHARLIE HUFF, DARRELL JOHNSTON; ALAN KING; NEIL MILLER; JIM NORTHINGTON; STEVE OLSEN; LARRY GREEN; JACK STICE; JIM SKELTON; JOHN CAMPBELL; KEN R. QUICK; R. S. BROADWATER; C. A. SCHEPACARTER; C. P. CONRADY; JOHN F. PAINTER; TOM E. STEVENS, as representatives of a class consisting of all Continental pilots; FRONTIER PILOTS LITIGATION STEERING COMMITTEE (Intervenor-Defendant) Neen ee 59a NEIL A. MILLER (Intervenor) Frontier Pilots Litigation Steering Committee, Appellant On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 87-1155) District Judge: Honorable Nicholas H. Politan Argued February 10, 1992 BEFORE: GREENBERG and COWEN, Circuit Judges, and GREEN, District Judgqe« * Honorable Clifford Scott Green, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. JUDGMENT ORDER After consideration of all contentions raised by the appellant, it is ADJUDGED and ORDERED that the judgment of the district court be and is hereby affirmed. 60a Costs taxed against appellant. BY THE COURT Circuit Judge ATTEST: Sally Mrvos, Clerk DATED: February 13, 1992 | 6la UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 91-5975 PEOPLE EXPRESS PILOT MERGER COMMITTEE Vv. TEXAS AIR CORP.; CONTINENTAL AIRLINES INC. PEOPLE EXPRESS INC, ; PEOPLE EXPRESS AIRLINES, INC. and FRANK T. SHANLEY; DAVID ROSS; H. F. MARONEY; A. G.- SINIBALDI; - GARY ARMENTROUT; BILL AUTREY; ANDY CASHETTA; H. A. COOPER; STAN CHALLGREN; BRIAN CRAVEN; JOHN GAYLORD; DON GENTRY; JOHN GIACCHI; DAVID HEEKEN; CHARLIE HIGDON; CHARLIE HUFF; DARRELL JOHNSTON; ALAN KING; NEIL MILLER; JIM NORTHINGTON; STEVE OLSEN; LARRY GREEN; JACK STICE; JIM SKELTON; JOHN CAMPBELL; KEN R. QUICK; R. S. BROADWATER; C.A. SCHEPACARTER; C. P. CONRADY; JOHN F. PAINTER; TOM E. STEPHENS, as representatives of a class consisting of all Continental pilots; FRONTIER PILOTS LITIGATION STEERING COMMITTEE (Intervenor-Defendant) 62a NEIL A. MILLER (Intervenor) Frontier Pilots Litigation Steering Committee,’ Appellant On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 87-1155) SUR PETITION FOR REHEARING PRESENT: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, and ROTH, Circuit Judges, and GREEN, District Judge* The petition for rehearing filed by the appellant in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the court in regular active service, and the court having ordered the appellees to file an answer to the petition and the court having considered the 63a petition and the answer and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active ser- vice not having voted for rehearing by the court in banc, the petition for rehearing is denied. BY THE COURT, Circuit Judge DATED: April 10, 1992 *Honorable Clifford Scott Green, United States District Judge for the Eastern Dis- trict of Pennsylvania, sitting by designa- tion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0945%3A1. Public record. Not legal advice.