OIL, CHEMICAL ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 4-367, PLAINTIFF-APPELLANT, v. ROHM HAAS, TEXAS INC., DEFENDANT-APPELLEE.
No. 81-2418. Summary Calendar.United States Court of Appeals, Fifth Circuit.
June 1, 1982.
Page 493
Chris Dixie Associates, Chris Dixie, Houston, Tex., for plaintiff-appellant.
Baker Botts, John B. Abercrombie, Tony P. Rosenstein, Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, POLITZ and WILLIAMS, Circuit Judges.
PER CURIAM:
[1] This case, tried on stipulated facts, seeks to compel enforcement of an arbitration award so as to apply the award prospectively to similar occurrences. The facts make clear that the employer has complied with the specific arbitration order and the only issue is the scope of the relief — whether the award should apply generally rather than only specifically to the employee in question. The issues submitted to an arbitrator, or the grievance itself when no submission agreement is used, define the limits of the arbitration award.
See Piggly Wiggly Operator’s Warehouse, Inc. v. Piggly Wiggly Operator’s Warehouse Independent Truck Drivers’ Union Local No. 1, 611 F.2d 580 (5th Cir. 1980). Here the issue of future application of the award to other employees was not specifically submitted to the arbitrator.
[2] We affirm on the basis of the District Court’s opinion, attached as an appendix to this opinion. We wish to add that even if the arbitration award could be read to have considered future applicability, the arbitrator refused to so apply his decision, stating:
One additional point must be discussed. The Union prayed that the Company be directed to re-instate the call in of encumbent employees to their position under the 1973 No. 24. I will deny the Union’s prayer because the Agreement clearly states that the Company has the sole right to institute and change procedures subject only to the limitation that the Company discuss the procedure with the Union and the procedure must not violate the Agreement. That language is unambiguous and no construction is necessary.
[3] If this statement concerning the issue of whether the employer should be ordered to reinstate the overtime procedure forming the heart of the grievance is viewed as synonymous with the issue of future applicability of the award, the effect would be to request that we review the
Page 494
merits of the arbitrator’s decision refusing to require a return to the prior procedure. This we cannot do. The arbitrator’s award is not subject to judicial review on the merits, for “[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” United Steelworkers v. Enterprise Wheel Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424, 1427
(1960). See Safeway Stores v. American Bakery Confectionery Workers, 390 F.2d 79 (5th Cir. 1968). “Whether the award can be given an effect akin to res judicata or stare decisis with regard to future disputes that may arise between the parties, 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 Steamship Ass’n v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980), cert. granted sub nom. Jacksonville Bulk Terminals, Inc. v. Longshoremen’s, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981) argued, 50 U.S.L.W. 3605 (January 18, 1982).
[4] AFFIRMED.
APPENDIX
CIRE, District Judge:
This case has been submitted on stipulated facts accompanied by
exhibits, and has been briefed by both parties. After
consideration of the pleadings, stipulations, exhibits, and
briefs, the Court enters this opinion and accompanying final
judgment.
The Oil, Chemical Atomic Workers International Union, Local
4-367 (the Union) brought this suit pursuant to 29 U.S.C. § 185
to enforce an arbitration award against Rohm Haas, Texas, Inc.
(the Company). The arbitration award was the result of a
grievance and arbitration pursued on behalf of R. H. Brown, an
employee and union member. Under the applicable collective
bargaining agreement, the Company was authorized to make
procedural changes that affected the day-to-day operations of the
plant. The Union was entitled to grieve the effects of any such
procedural changes. When the Company instituted a new procedure
for filling temporary shift vacancies, Brown missed the
opportunity to earn some overtime pay. The adverse effect of the
procedural change on Brown was grieved and eventually arbitrated.
The award stated that the Union’s right to grieve the effects of
procedural changes included the right to pursue those grievances
to arbitration, and the Company was directed to pay Brown for the
hours of overtime he would have earned under the prior procedure.
The Union does not claim that the Company has subsequently
refused to arbitrate grievances stemming from procedural changes,
nor does the Union complain that the Company has failed to pay
the overtime to Brown. Nevertheless, the Union seeks to “enforce”
the award by means of an injunction ordering compliance. The
Company insists that it has fully complied.
The heart of the Union’s complaint is that the Company has
refused to pay other employees who, like Brown, have lost the
opportunity to earn additional pay as a result of the new
procedure for filling vacancies. The Union seeks to give the
arbitration award precedential value through this suit for
enforcement; the injunction sought would direct the Company to
pay overtime rates to any employee who missed the opportunity to
fill a vacancy under the new procedure.
The Court concludes that it may not grant the requested relief.
To do so would usurp the function of the arbitrator and violate
the rule that awards may be enforced only as written. New
Orleans Steamship Association v. General Longshore Workers,
626 F.2d 455 (5th Cir. 1980), cert. granted sub nom. Jacksonville
Bulk Terminals Inc. v. International Longshoremen’s Assoc.,
[450] U.S. [1029], 101 S.Ct. 1737 [68 L.Ed.2d 223] (1981). The
issue of the general applicability of this award was not
submitted to the arbitrator, and the Court may not, under the
guise of enforcement, broaden the scope of the award by deciding
that issue itself.
Page 495
A Court on occasion may find that the answer to a collateral
dispute is implicit in the award. Staffman’s Organizing
Committee v. United Steelworkers of America, 399 F. Supp. 102
(W.D.Mich. 1975) (award of reinstatement presumed to mean
reinstatement to a particular plant). Generally, however,
collateral questions about the scope or application of an award
are themselves questions for arbitration. New Orleans Steamship
Association v. General Longshore Workers, supra.
It is sometimes a prodigious task to enforce an award even when
its applicability to similar cases is explicit. In Oil, Chemical
and Atomic Workers International Union, Local 4-16000 v. Ethyl
Corporation, 644 F.2d 1044 (5th Cir. 1981), the award prohibited
“like violations.” The Fifth Circuit outlined in great detail the
course to be followed in determining whether a given incident is
a “like violation” requiring judicial enforcement or whether the
conduct is sufficiently distinguishable from the original facts
to require an arbitrator’s decision. The Court’s role is
carefully delineated in order to preserve the integrity of the
arbitration process. Clearly the Court may not bypass that
process when the question, as here, is not what constitutes a
“like violation” but whether the award was intended to apply to
“like violations” at all.
The Court notes that remand to the arbitrator is the
appropriate disposition of an enforcement action when an award is
patently ambiguous, when the issues submitted were not fully
resolved, or when the language of the award has generated a
collateral dispute. United Papermakers and Paperworkers, AFL-CIO
v. Westvaco Corp., 461 F. Supp. 1022 (W.D.Va. 1978). In such a
case a remand is necessary to clarify precisely what the Court is
being asked to enforce. A remand is not appropriate, however,
where it would force a decision on an issue not previously
submitted to the arbitrator. Id. Under those circumstances, the
Plaintiff must again invoke the grievance and arbitration
procedure in order to resolve the collateral issue.[1] Id.
See also International Brotherhood of Electrical Workers,
AFL-CIO v. New England Telephone and Telegraph Co., 628 F.2d 644
(1st Cir. 1981); and International Association of Machinists and
Aerospace Workers v. Aerojet-General Corp., 263 F. Supp. 343
(C.D.Cal. 1966).
In this case, the express terms of the award have been complied
with, and there appears to be no ambiguity with respect to
general applicability, since that issue was not previously
presented to the arbitrator. Accordingly, a new grievance is
preferable to remand.
Plaintiff not being entitled to relief in this case, judgment
shall be entered for Defendant.