denied by Wackenhut and submitted to arbitration. Goldberg Aff. P 9. On May 18, 1993, Arbitrator Robert E. Light held a hearing in the Coelho matter. Opinion and Award of September 17, 1993 ("Arb. Award") at 2.
On September 17, 1993, Arbitrator Light issued a decision holding that Wackenhut's termination of Coelho violated the terms of the CBA. Arb. Award at 11, 13. The arbitrator awarded Coelho full back pay and benefits through the date of the arbitration award. Id. at 11. In addition, the arbitrator directed Wackenhut to renew its efforts to persuade Con Ed to reinstate Coelho's security clearance and, failing that, to reinstate his employment at another facility in a "comparable employment within a reasonable geographic area." Id.; Compl. P 9.
On December 15, 1993, Wackenhut filed the instant action seeking to vacate the arbitration award on the grounds that, inter alia, 1) the arbitrator exceeded his authority under the CBA, and 2) the arbitrator improperly deviated from two prior arbitration decisions in rendering his opinion. Compl. PP 16-17, 26, 31, 39-40. As stated above, defendants counterclaimed to enforce the arbitration award on the basis that the award was properly rendered. Answer and Counterclaim. P 55.
For the reasons set forth below, the arbitrator's award is confirmed to the extent that the arbitrator found Coelho's termination to be improper. However, insofar as the arbitrator awarded Coelho back pay and benefits and ordered Wackenhut to extend an offer of comparable employment at a facility not covered by the arbitration agreement, the award is vacated.
Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
It is well established that "judicial review of an arbitration award is extremely limited." Burns Int'l v. International Union, United Plant Guard Workers, Local 537, 47 F.3d 14, 17 (2d Cir. 1995). A party seeking to vacate an arbitration award must establish that the award does not "draw its essence from the collective bargaining agreement." United Steel Workers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960). Because an arbitrator "does not sit to dispense his own brand of industrial justice" and "is confined to interpretation and application of the collective bargaining agreement," id. at 597, vacatur is required where an arbitrator "exceed[s] the limits of his contractual authority" or where the award "is not derived in some rational way" from the CBA. Local 814, Int'l Bhd. of Teamsters v. Sotheby's, Inc., 665 F. Supp. 1089, 1092 (S.D.N.Y. 1987) (quoting American Fed'n of Television and Radio Artists v. Benton & Bowles, Inc., 627 F. Supp. 682, 686 (S.D.N.Y. 1986)); see also Detroit Coil v. International Ass'n of M. & A. Workers, Lodge # 82, 594 F.2d 575, 579 (6th Cir.), cert. denied, 444 U.S. 840 (1979).
In determining whether an award draws its essence from the contract, the court must afford substantial deference to the decision of the arbitrator, who "need only explicate his reasoning under the contract 'in terms that offer even a barely colorable justification for the outcome reached' in order to withstand judicial scrutiny." In re Marine Pollution Service, Inc., 857 F.2d 91, 94 (2d Cir. 1988) (citation omitted); see also Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir. 1978). The proper analysis is not whether the court would interpret the contract in the same manner, but rather whether "the arbitrator exceeded his authority in making these interpretations." Meyers v. Parex, Inc., 689 F.2d 17, 18 (2nd Cir. 1982). "As long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987).
In the instant case, the arbitrator's determination that Wackenhut violated the CBA by terminating Coelho draws its essence from the CBA and therefore must be enforced. The management rights clause provides that management has "the right to . . . discharge employees for just cause, [and] to relieve employees from duty because of lack of work or at client request." CBA, art. III, § 1 at 3 (emphasis added). In light of that language, the arbitrator's holding that the term "relieve from duty," although not defined in the CBA, differs from "discharge" is sufficiently grounded in the terms of the CBA to withstand this Court's limited judicial review. Indeed, to hold as Wackenhut contends, that relieving an employee from duty is tantamount to a discharge, would render the "just cause" provision redundant. Had the parties intended to equate the loss of security clearance with "just cause," they could have provided to that effect in the CBA.
The arbitrator's interpretation is further supported by the contract provision relating to seniority. The CBA contains a detailed list of the instances in which an employee loses seniority, including discharge. See CBA, art. VIII, § 6 at 16. However, nowhere is "relief from duty at client request" listed as a basis for loss of seniority. It follows that where, as here, the arbitrator found -- and the parties concede -- that Wackenhut did not have just cause to discharge Coelho, Arb. Award at 11, the arbitrator's determination that Wackenhut violated the CBA is properly grounded in the terms of the CBA and must be enforced. See Burns, 47 F.3d at 17. In sum, the parties clearly manifested an intent that discharge and relief from duty were separate and distinct situations with different consequences to the employee.
The appropriateness of the remedy ordered by the arbitrator raises a more difficult issue. It is true that where "the draftsmen [of the CBA] may never have thought of what specific remedy should be awarded to meet a particular contingency," an arbitrator may under certain circumstances exercise remedial powers not expressly granted in the agreement. Enterprise Wheel & Car Corp., 363 U.S. at 597; see also Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1163-64 (7th Cir. 1984), cert. denied. However, an arbitrator's power is nonetheless "derived from, and limited by, the collective bargaining agreement." Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 744, 67 L. Ed. 2d 641, 101 S. Ct. 1437 (1981); see also 9 U.S.C. § 10(d). It follows that where, as here, the parties explicitly agreed that the arbitrator "cannot modify, amend, add to, detract from or alter the provisions," CBA, art. VII, § 10 at 13, of the CBA, the arbitrator's grant of a remedy which exceeds the terms of the CBA is clearly beyond the scope of the arbitrator's power.
See Leed Architectural Products, Inc. v. United Steelworkers, Local 6674, 916 F.2d 63, 66 (2d Cir. 1980); see also Miller Brewing, 739 F.2d at 1163-64; 470 Stratford Holding Co. v. Local 32 B-32J, Service Employees Int'l Union, 805 F. Supp. 118, 122 (E.D.N.Y. 1992); Teamsters Local 814, 665 F. Supp. at 1092.
Here, the arbitrator awarded Coelho back pay through the date of the arbitration award and directed Wackenhut to renew its attempts to convince Con Ed to reinstate his site clearance. Arb. Award at 11. Failing that, Arbitrator Light directed Wackenhut "to attempt to make an accommodation to [Coelho] with an offer of comparable employment within a reasonable geographical area." Id. In the face of the evidence presented at the hearing indicating that Wackenhut may not have made good faith efforts to persuade Con Ed to reinstate Coelho's clearance, the remedy requiring Wackenhut to renew those efforts draws its essence from the contract's implied covenant of good faith and should be enforced.
See Vaca v. Sipes, 386 U.S. 171, 191, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967) (duty of good faith imposed on employer and union to resolve disputes prior to arbitration).
However, since the arbitrator clearly overstepped his authority in directing Wackenhut to reinstate Coelho to another facility not covered by the CBA and to pay Coelho back wages and benefits, that portion of the award must be vacated. The union concedes that the arbitrator's order directing reinstatement at another facility is not enforceable.
In any event, that provision must be vacated because Wackenhut is not obligated to secure employment for a union employee outside the jurisdiction and scope conferred by the collective bargaining agreement, which is explicitly limited to the Indian Point facility. CBA, art. II, § 1 at 2-3. Indeed, even if Coelho had been relieved of duty and not improperly discharged, he would have had no right under the CBA to reinstatement at another facility.
Similarly, because Coelho would not have been entitled to pay or benefits even if Wackenhut had relieved him of duty without discharging him, the arbitrator's award granting him back benefits as a remedy for improper discharge bestows a windfall upon him. See Miller Brewing, 739 F.2d at 1164 (vacating arbitration remedy putting grievant in better position than he would have been in if there had been no violation of the CBA). This is especially true given that the parties specifically agreed that:
Any employee who does not qualify or requalify under the State Licensing Laws or NRC who is subsequently declined licenses or any required clearances, etc., shall not be entitled to back pay if he or she is later reinstated because of subsequent permission or qualification by the Secretary of State or NRC Regulations.
CBA, art. VII, § 13 at 14 (emphasis added).
The union argues that this provision establishes that if the parties had intended to deny back pay to an employee who was improperly discharged after having been relieved at client's request, they could have incorporated a provision to that effect. That argument is unpersuasive because the parties did include a specific provision foreclosing that relief. Article VII, section 13 explicitly provides that back pay is unavailable where, as here, the employee is denied "any required clearances," including Con Ed's security clearance.
Wackenhut's argument that the arbitrator exceeded his authority by failing to follow the holdings in two prior arbitration awards, the Weir award and the O'Neill award, must likewise be rejected. Arbitration awards do not have the same stare decisis effect as court judgments. See Connecticut Light & Power Co. v. Local 420, International Bhd. of Elec. Workers, 718 F.2d 14, 20 (2d Cir. 1983). Ordinarily, the fact that inconsistencies exist between prior arbitration awards is not a basis in and of itself to set aside an award. Id. In any event, even assuming, arguendo, that the Court had the power to vacate an award on that ground, it would be improvident to exercise that power here.
First, it is not entirely clear that the Weir award is even inconsistent, especially in view of this Court's modification of the award as set forth above. The Weir award and the instant award consistently interpret the terms of the CBA to provide that an employee can be indefinitely relieved of duty at client request absent just cause and that an award directing Wackenhut to place the relieved employee at another facility transcends the scope of the CBA. Wackenhut argues that the rationale in the Weir award was inconsistent to the extent that the arbitrator in Weir held that relief from duty was "tantamount to discharge." However, in that case the employee was properly discharged because the employee was guilty of the misconduct which led to his discharge. Therefore, the language relied upon was not essential to the result reached because it made no difference to the outcome whether the employee was regarded as "discharged" or "relieved of duty."
With regard to the O'Neill award, it is significant that Wackenhut failed to cite that award to the arbitrator and therefore should not be permitted to rely on that case as a basis for challenging the award in the instant action. Nor does the fact that Arbitrator Light decided the O'Neill award compel a different result. It is not incumbent upon an arbitrator to ferret out a prior arbitration award not brought to his attention by the litigant. This is especially true given that Wackenhut has shown no reason for failing to cite the O'Neill decision, which they now argue is relevant and controlling.
In any event, the only inconsistency between O'Neill and the instant arbitration award is the fact that in O'Neill, the arbitrator held that an employee relieved at client request was not entitled to back pay. However, the Court has already vacated that portion of the award, and thus the award as modified is no longer inconsistent with the O'Neill decision.
Even if this were a case where inconsistencies exist, it is clear that all three awards draw their essence from the contract. Connecticut Light, 718 F.2d at 21 (citing United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at 597). As noted above, an arbitration award draws its essence from the CBA if an arbitrator "explicate[s] his reasoning under the contract 'in terms that offer even a barely colorable justification for the outcome reached.'" In re Marine Pollution Service, Inc., 857 F.2d 91, 94 (2d Cir. 1988) (citation omitted).
Tested by that precept, although the instant award and the Weir award interpret the meaning of "relieved of duty at client request" differently, both awards are properly grounded in the terms of the CBA and therefore draw their essence from the contract. This is especially true where, as here, the CBA is silent with respect to what, if any, precedential weight must be attributed to previous awards, and the CBA does not explicitly require an arbitrator to follow a previous award. See Fournelle v. N.L.R.B., 216 U.S. App. D.C. 173, 670 F.2d 331, 344 n.22 (D.C. Cir. 1982); Hotel Ass'n v. Hotel & Restaurant Employees Union, Local 25, 295 U.S. App. D.C. 285, 963 F.2d 388, 390 (D.C. Cir. 1992); Local No. 199, International Bd. of Elec. Workers, v. United Tel. Co., 738 F.2d 1564, 1571 (11th Cir. 1984); New Orleans S.S. Ass'n v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980), aff'd, 457 U.S. 702, 73 L. Ed. 2d 327, 102 S. Ct. 2672 (1982).
For the reasons set forth above, the arbitration award is enforced insofar as the arbitrator held that Wackenhut violated the CBA by discharging Coelho and directed Wackenhut to renew its efforts to persuade Con Ed to reinstate his security clearance and vacated insofar as the arbitrator granted reinstatement and back pay and benefits. The Clerk of Court shall enter judgment accordingly and close the above-captioned action.
Dated: New York, New York
September 6, 1996
John E. Sprizzo
United States District Judge