The arbitrator interpreted the provision and concluded that "because this is a layoff clause, and because this decision to eliminate positions was motivated by outside economic forces and not employee performance, . . . the second sentence creates a presumption that seniority shall control as long as abilities are equal . . . ." Arbitrator's Decision at 20. According to the arbitrator, "where the Company lays off a more senior employee, the Company must provide convincing objective evidence that the junior employee was superior in performance, attendance, and productivity." Id. at 25.
The arbitrator determined that the Company had not engaged in a proper "relative ability" analysis and produced convincing objective evidence of the junior employees' superior abilities. According to the Company, all employees were good employees who had already survived a layoff. In fact, the Company was forced to make "fine distinctions" between the employees to determine who would be laid off. Ultimately, based on his interpretation of the provision, the arbitrator found that if only "fine distinctions" could be made, then seniority should control.
2. Grievance Involving Ed Strader
The grievance brought on behalf of Strader involved different circumstances. In 1983, Strader and other Camera Department employees were transferred into the Off Press Proof Department, and new hires were made. On October 20, 1983, the Union and the Company signed a side-letter agreement concerning the creation of this department, which provided a lower starting wage rate for new hires and retained the then-current wage rate for more senior employees, including Strader. Paragraph 4 of the side-letter reads: "It is understood that 'new hires' mentioned above cannot replace any present Pre Press Department employee except by just cause firing, death, resignation, withdrawal or retirement."
The arbitrator found that the Company had breached this side-letter agreement with respect to Strader when he was laid off in the Fall of 1993 and, essentially, replaced by new employees who had been hired since 1983.
A. Summary Judgment Standard
Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Here, the parties agree that there are no material issues of fact in dispute and that resolution of the motions depends entirely on a legal determination of whether the arbitrator's award should be vacated or confirmed.
B. Standard of Review of an Arbitrator's Award
"For purposes of avoiding industrial strife, settled national policy holds that voluntary arbitration under a collective bargaining agreement is the preferred method of resolving disputes between labor and management." Harry Hoffman Printing, Inc. v. Graphic Communications Int'l Union Local 261, 950 F.2d 95, 98 (2d Cir. 1991) (citing United Steelworkers v. American Mfg. Co., 363 U.S. 564, 565, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 577-78, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960)). Courts, therefore, "play only a limited role when asked to review the decision of an arbitrator." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987).
"An arbitrator's decision is entitled to substantial deference, and the arbitrator 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 Serv., Inc., 857 F.2d 91, 94 (2d Cir. 1988) (quoting Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir. 1978)). "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. at 38; Hygrade Operators, Inc. v. Local 333, United Marine Div., 945 F.2d 18, 22 (2d Cir. 1991). In fact, "'the court is forbidden to substitute its own interpretation even if convinced that the arbitrator's interpretation was not only wrong, but plainly wrong.'" Local 1199 v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir. 1992) (quoting Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1505 (7th Cir. 1991)). "Confirmation of the award cannot be prevented by litigants who merely argue, however persuasively, for a different result." Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d at 704.
"Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at 597. Further, an arbitrator "may not shield an 'outlandish disposition of a grievance' from judicial review 'simply by making the right noises--noises of contract interpretation.'" Leed Architectural Prods., Inc. v. United Steelworkers Local 6674, 916 F.2d 63, 65 (2d Cir. 1990) (quoting In re Marine Pollution Serv., Inc., 857 F.2d at 94 (quoting Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 187 (7th Cir. 1985))).
1. Grievances Involving Employees in the Sheetfed Pressroom
My task with respect to this grievance is to determine whether the arbitrator, in fact, interpreted an arguably ambiguous contract provision or administered his own brand of industrial justice. See Local 1199 v. Brooks Drug Co., 956 F.2d 22, 26 (2d Cir. 1992). While I find that this is a close case, the judicial deference accorded to an arbitrator's award mandates confirmation of the award.
Here, the arbitrator's opinion, when taken in its entirety, may be read "as embodying a construction of the agreement itself, perhaps with the arbitrator looking to 'the law' for help in determining the sense of the agreement." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597-98, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).
The arbitrator determined that the language of Article 8, Section 6 was somewhat ambiguous. He proceeded to interpret the provision in light of two critical factors that were present. The first factor was that the decision to eliminate positions by layoff here was motivated by economic forces and not employee performance. The second factor was that all the employees were good employees who had already survived one layoff and who could only be differentiated by "fine distinctions." The arbitrator interpreted the language "if abilities are equal, then seniority within the Department shall prevail" to require approximate or near equality in ability and not exact or absolute equality. Accordingly, under this arbitrator's interpretation, if only "fine distinctions" could be made between the employees, then their "relative abilities" were approximately equal and seniority should control. This is one plausible interpretation of the agreement's ambiguous language. Essentially, the arbitrator harmonized the two competing interests of "relative ability" and "seniority" in light of the circumstances present.
Further, although the collective bargaining agreement provided that "relative ability to do the work" shall be the determining factor for layoffs, it did not set forth either the criteria for determining "relative ability" or the standard of proof that would be required of the Company. Certainly, both of these determinations were within the province of the arbitrator to determine. See Exxon Shipping Co. v. Exxon Seaman's Union, 73 F.3d 1287, 1295 (3d Cir.), cert. denied, 135 L. Ed. 2d 203, 116 S. Ct. 2515 (1996). Therefore, the arbitrator was acting within his authority when he concluded that "where the Company lays off a more senior employee, the Company must provide convincing objective evidence that the junior employee was superior in performance, attendance, and productivity." Arbitrator's Decision at 25.
Finally, the arbitrator's conclusion that the Company had not engaged in a proper "relative ability" analysis was based on the Company's failure to produce any evidence indicating the superior qualifications of those less senior employees who were retained. Without such objective evidence, the arbitrator was unable to ensure that management acted reasonably, without discrimination, and in good faith.
Certainly, the arbitrator's interpretation of the relevant clause, on these facts, is not the only logical interpretation. Another arbitrator might have reached a contrary conclusion. In fact, had this case been submitted to the Court for de novo review, I may have reached a different result. For example, I think that the language "if abilities are equal, then seniority within the Department shall prevail" could be interpreted to require absolute equality before seniority even comes into play. Arguably, "fine distinctions" between employees, based on criteria deemed important by the Company, was precisely what the contract anticipated. In other words, one employee's abilities may be relatively better than another's, even if both are good employees. However, the standard of review in this case is not de novo. The Company and the Union did not bargain for my interpretation; they bargained for the arbitrator's interpretation--an interpretation that I am neither entitled nor inclined to second guess. W.R. Grace & Co v. Local Union 759, 461 U.S. 757, 765, 76 L. Ed. 2d 298, 103 S. Ct. 2177 (1983). This court has no business overruling an arbitrator because its interpretation of the contract is different from his. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at 598.
For all these reasons, the arbitrator's decision with respect to the grievance involving employees in the Sheetfed Pressroom must be confirmed. There is adequate support in the arbitrator's opinion to conclude that the award draws its essence from the collective bargaining agreement.
2. Grievance Involving Ed Strader
I find that the grievance involving Ed Strader is more straightforward. Here, the arbitrator clearly was construing the contract and acting within the scope of his authority. The side-letter agreement, in paragraph one, provides a starting pay rate for "new hires." In paragraph two, the agreement states that the pay rate of employees already assigned to the Off Press Proofing facility, including Strader, would not be reduced. Paragraphs one and two, therefore, distinguish between "new hires" and "present employees," with Strader specifically included in the latter category. The side-letter agreement provides further, in paragraph four, that "it is understood that 'new hires' mentioned above cannot replace any present Pre Press Department employee except by just cause firing, death, resignation, withdrawal or retirement." The arbitrator's conclusion that new hires in the Off Press Proofing Department since 1983, who survived the instant round of layoffs, replaced Strader in violation of this agreement is certainly a reasonable interpretation of the agreement's language.
Accordingly, the arbitrator's decision with respect to Strader's grievance draws its essence from the side-letter agreement and must be confirmed.
For the foregoing reasons, plaintiff's motion for summary judgment, vacating the arbitration award, is denied, and defendant's cross-motion for summary judgment, confirming the award, is granted.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
March 18, 1997.