Appeal from a judgment of the United States District Court for the District of Connecticut (T.F. Gilroy Daly, Judge) vacating an arbitration award.
Kearse, Cardamone and Winter, Circuit Judges.
Local 420, International Brotherhood of Electrical Workers, AFL-CIO, appeals from a decision by Chief Judge Daly vacating an arbitration award rendered in its favor. We affirm.
The Connecticut Light & Power Company ("the Company"), a subsidiary of Northeast Utilities, is a public utility which generates and distributes electricity. Local 420 of the International Brotherhood of Electrical Workers, AFL-CIO ("the Union") has represented employees of the Company at various locations throughout the State of Connecticut for many years.
During 1974 and 1975, the Company undertook the development of a work management system intended to optimize use of labor, financial and equipment resources. One aspect of this system involved the restructuring of work crews by determining crew size for any particular job according to a "pre-analysis" of the requirements of each job.
The Union was advised of the Company's consideration of the work management system in January, 1977. On January 5, 1979, the Company informed the Union that it was implementing the system and furnished a chart showing jobs commonly performed in the line department and the number of men to be assigned to each job. Among these jobs were the installation and removal of pole mounted transformers. The chart indicated that the normal crew would consist of two men, a change from the earlier practice of using three-man crews for such work. Management made a presentation demonstrating the new two-man crew methods to line department employees in the Stamford unit on May 24, 1979.
On October 19, 1979, a two-man crew from the Stamford unit was assigned to hang a transformer. The Union filed a grievance under the existing collective bargaining agreement, and, on November 15, requested arbitration. It claimed that the assignment violated Articles IA*fn1 and IX, Section 1*fn2 of the collective bargaining agreement and the "agreed to past practice of assigning three or more Line Department Bargaining Unit employees for the removal and/or installation of a pole mounted transformer in Stamford." Hearings before arbitrator Alfred B. Clark began on February 26, 1980.
Two-man transformer crew assignments also occurred on October 25, November 15 and November 20, 1979. On February 29, 1980, the Union grieved these assignments and again demanded arbitration. The Company requested that proceedings in the Union's second arbitration demand be deferred and suggested that Clark's decision be dispositive of all the grievances since they raised identical issues. The Union refused and the American Arbitration Association processed the second demand for arbitration, which culminated in the appointment of arbitrator Tim Bornstein.
On September 22, 1980, arbitrator Clark issued a decision in favor of the Union. He noted that in a contract with the same union but in a different bargaining unit, the Company had agreed to a provision specifying that not less than three employees would be utilized in installing or removing transformers. Reasoning that management would not have agreed to such a provision unless safety required a three-man crew and relying upon the testimony at the arbitration hearing about the prior practice of using only three-man crews for transformer work, he concluded that the three-man crew was an essential safety measure. Because crew size was a safety issue under Article IX, Section 1, he further reasoned that the Company did not have the unilateral right under Article IA to change the practice of assigning a minimum of three men to transformer work. He ordered the Company to cease and desist from making assignments of less than three-man crews for pole mounted transformer work.
The hearing before arbitrator Bornstein began on October 9, 1980, and the Union submitted the Clark award. It argued that Bornstein was not only bound by the Clark award but that he was actually foreclosed from considering the merits of the grievances before him. Bornstein rejected the Union's argument and held that the Company had the right to change its prior practice of assigning three-man crews for transformer work. Although he acknowledged that the issue before him was identical to the issue decided by Clark and that consistency in arbitration awards involving the same parties and the same contract is important, Bornstein refused to defer to the Clark award because he considered it "analytically unsound." Bornstein believed that the provision of the contract covering the other bargaining unit, which explicitly required three-man crews on transformer work, highlighted the absence of a similar provision in the contract in dispute. Bornstein also rejected Clark's conclusion that transformer work crew size was frozen as a safety measure. He noted that the safety provisions of Article IX were silent as to crew size involving non-live wire work such as transformer work whereas they contained very detailed provisions as to crew size on live wire work.*fn3 He also noted that Article IX contained other explicit and detailed provisions relating to safety and procedures to be followed in such matters.*fn4 From this he reasoned that silence as to transformer crew size implied that three-man crews were not mandatory in each case. Rather, he argued that variations in jobs and work sites precluded a finding that three-man crews were always and invariably necessary in the name of safety. In his view, some might require three or more men, others less, the safety issue to be determined in each case under Article IX. He concluded:
the entire record in this case supports the conclusion that the practice in question -- the use of three-man crews to hang transformers -- is not forever frozen. Based on the rationality and legitimacy of management's reasons, I find that the contract does not bar a change in that practice, but permits a change that is consistent with the contract's safety provisions set forth in Article IX and related side letters.
On June 26, 1981, the Company advised the Union that, pursuant to the Bornstein award, it would reinstate the practice of selecting the optimum crew size for installation or removal of transformers consistent with safety requirements. In response, the Union sought a temporary restraining order requiring the Company to comply with the Clark award pending the district court's ...