Appeals from order entered in the United States District Court for the Western District of New York, John T. Curtin, Judge, confirming award of an arbitrator in an action brought pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1970).
Lumbard, Hays and Timbers, Circuit Judges.
This is an appeal by two parties from a judgment of the district court confirming an arbitration award in a jurisdictional dispute among an employer and two unions over assignment of jobs in the employer's plant. Local 516, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), defends the award and judgment of the district court in all respects. Niagara Frontier Technical Association, Local 205, American Federation of Technical Engineers, appeals on the ground that the arbitrator exceeded his powers, denied Local 205 a fair hearing, and acted with evident partiality. We hold that these claims lack merit and to that extent we affirm the decision of the district court. The employer, Bell Aerospace Company, appeals on the ground that the award was ambiguous and contradictory and should have been remanded for clarification. We find this claim justified and to that extent we reverse and remand.
In September and October 1970 Local 516 filed two grievances claiming that jobs properly belonging to its members under its collective bargaining agreement with Bell had been assigned to members of Local 205. Bell tried but failed to obtain a Unit Clarification Order from the National Labor Relations Board. Bell then filed a grievance against Local 205 and demanded arbitration. On July 30, 1971, Bell filed in the district court a complaint against both unions under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1970), and sought an order to compel tripartite arbitration. On August 5, 1971, the court preliminarily enjoined further arbitration proceedings until it could dispose of Bell's complaint. On January 12, 1972, acting pursuant to 9 U.S.C. § 4 (1970), the district court ordered that all grievances be heard in a single proceeding before an arbitrator.
After conducting hearings and receiving exhibits and briefs the arbitrator issued his award on January 30, 1973. Local 205 petitioned the district court to vacate the award and Local 516 moved to confirm the award. On March 14, 1973, the court granted the motion of Local 516. On April 17, 1973, Local 205 moved to vacate the award on the ground that the arbitrator had so imperfectly executed his powers that a final, definite award was not made. Bell cross moved on the same ground to have the award remanded to the arbitrator for clarification. On May 17, 1973, the district court granted Bell's motion.
On June 28, 1973, the arbitrator issued his clarification. Local 516 moved in the district court to confirm the award as clarified. Bell opposed the motion on the ground that the award was still ambiguous despite the clarification. The district court agreed that "the language of the award appears to be contradictory." Nevertheless the court confirmed the award on the ground that the arbitrator had done "his best" and that there was "no reason to believe that a remand would lead to any additional clarification."
Bell and Local 205 appealed.
Local 205 claims that the award must be vacated because the arbitrator exceeded his powers, denied a fair hearing, and showed partiality.
A federal court may vacate the award of an arbitrator only on the grounds specified in 9 U.S.C. § 10 (1970). Local 205's first claim is that the arbitrator exceeded his powers within the meaning of 9 U.S.C. § 10(d) by going beyond the scope of the collective bargaining agreement between Bell and 205 and considering the certification of Local 516. In Columbia Broadcasting System, Inc. v. American Recording and Broadcasting Ass'n, 414 F.2d 1326 (2d Cir. 1969), this court held relying on Transportation-Communication Employees Union v. Union Pacific R.R., 385 U.S. 157, 161, 17 L. Ed. 2d 264, 87 S. Ct. 369 (1966), that the developing common law of labor contracts permitted the district court to go beyond the scope of a collective bargaining agreement and compel tripartite arbitration. 414 F.2d at 1328-29. To accept Local 205's argument would effectively nullify our former holding by preventing the arbitrator from referring to documents necessary to resolve the dispute. The collective bargaining agreements with both unions and the NLRB certification were relevant to the jurisdictional dispute here and the arbitrator did not exceed his powers by referring to all of them.*fn1
Local 205 also claims that the arbitrator was guilty of "misbehavior by which the rights of any party [may] have been prejudiced" within the meaning of 9 U.S.C. § 10(c) by referring to an affidavit which was not placed in evidence. The district court found that the affidavit was part of the record in an NLRB case which the parties had stipulated was relevant. Moreover, Local 205 had notice of inclusion of the affidavit in the record through a letter from the attorney for Bell. In handling evidence an arbitrator need not follow all the niceties observed by the federal courts. He need only grant the parties a fundamentally fair hearing. Reliance on the affidavit did not deny Local 205 a fair hearing.
Finally, Local 205 claims that the arbitrator was guilty of "evident partiality" within the meaning of 9 U.S.C. § 10(b). The only basis for the claim is that the arbitrator consistently relied on evidence and reached conclusions favorable to Local 516. This does not establish "evident partiality." There is no evidence that the arbitrator was biased or prejudiced, that he was predisposed to favor either party, or that he acted out of any ...