USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 96-2211

EL MUNDO BROADCASTING CORPORATION,

Plaintiff, Appellee,

v.

UNITED STEELWORKERS OF AMERICA, AFL-CIO CLC,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

David R. Jury,
_____________

Assistant General Counsel, United Steelworkers

America, with whom Hilary E. Ball-Walker and Cooper, Mitch, Crawfo

______________________
_____________________
Kuykendall & Whatley were on brief for appellant.
____________________

Luis D. Ortiz Abreu with whom Frances R. Colon Rivera and Gold
___________________
________________________
____
Antonetti & Cordova were on brief for appellee.
___________________

____________________

June 2, 1997
____________________

ALDRICH,

Steelworkers

Senior Circuit
Judge.
_______________________

of America, AFL-CIO

CLC (the

The

United

"Union") appeals

from an order of the district court granting summary judgment

to appellee El

Mundo Broadcasting Corporation

("El Mundo"),

vacating an arbitration award in favor of the Union.

appeals the

court's denial of

judgment to enforce the award.

I.

This

cases

proceed on a grievance

its cross motion

for summary

We affirm.

Background
__________

arises

from

the

Union's attempt

the Union and El Mundo

effect

through

Section XLV

September

to

covered under a collective bargaining

agreement (the "CBA") between

from

It also

1991

of the CBA describes the

September

16,

and in

1994.

grievance procedure as

follows:

Sec.

1 -

The contracting

parties shall

follow the following procedure

on

complaints,

related

to

disputes

the

to settle

or

grievances

construction

bargaining agreement

of

this

which arise between

both:

First

Step:

shall

take his/her

through

The complaining

the

shop

department
supervisor

to
within

employee

case directly
steward

in

to or
his/her

grievant's

immediate

three (3)

days after

the occurrence of the act or action which

gave rise to the complaint or claim.
supervisor shall have up to

The

two (2) days

to rule on the case, and must immediately

notify the shop steward, or the grievant,
in writing, of his/her decision.

Second
First

Step:
Step

grievant,

If
is

the

solution at

unsatisfactory

he/she,

on

-2-

his/her

the

to

the

own

or

through
(3)

the

days

shop steward,
of

being

within three

notified

of

the

decision at the First Step, may bring the

case to the head

of the department where

the employee works, who shall have up

two

(2)

days

to

rule

on

the

to

matter

submitted, and must notify in writing the

grievant
decision,

or

shop

within

steward
the

of

period

his/her
specified

herein.

Third

Step:

If

there is

no

solution

satisfactory to the parties at the Second

Step, the

grievant or the

may submit the case in

shop steward,

writing, no later

than three (3) days after being given the

decision

in

Grievance

the

Second

Committee

Step,

which

to

is

the

created

hereinbelow . . . .

b)

The

hear

Grievance

and

see

documentary
the

and

based

date

on

and

submitted

shall

by

make

its

of

the

(10) days

from

on

evidence within ten

the

shall

the testimonial

evidence

parties

decision,

Committee

all

which

the

case

is

submitted to it . . . .

Sec. 3 - Arbitration:
(10) days

from

decision

is

Committee,

No later than ten

the date

issued
either

on

by
of

which

the
the

the

Grievance

parties

may

bring its case before an arbitrator . . .

the parties shall have the opportunity to
present

their case once

arbitrator, who in his/her

adhere

to the

Agreement

and

terms of
to

more before the

decision must
this Bargaining

the submission

submitted to him . . . .

being

In

became

November

available.

required

under

the

El Mundo

the CBA.

received a "personnel

given

1992,

full-time

did not

post the

position as

the Union

action" advising it that El

Mundo had

to

-3-

December

position

9, 1992,

editor position

On

editor

one

Sandra Lopez

effective

November

23,

1992.

("Villalongo"),

Jose

Mendoza

On

December

President of

("Mendoza"),

alleging that El

Mundo had

greater seniority

Mendoza

replied

allegations

November

where

suggested

editor

and

to

happened

"Grievance

Local 9314,

sent a

letter to

Mundo's

personnel

manager,

than

Lopez.

Villalongo

January 5,

denying

not

posting

to

Union's

meeting the

previous

objected when

Mendoza

giving

the

agreeing through

his

not respond.

until March 8, 1993

when the Union

Mundo's

1993,

the

process and

in effect

did

El

of

had

Lopez,

Villalongo

Report."

On

Villalongo,

eliminating the

by failing

to consider two other employees

reminding him

position to

silence.

Villalongo

violated the CBA

post the editor position and

with

Juan

El

16,

response

Nothing

further

sent Mendoza a

was

that

the

grievance was not arbitrable because the Union had

comply

with

grievance

the procedures

under

and

the CBA.

On

time limits

March

failed to

for

19, 1993,

filing a

not having

complied with the Second Step, the Union filed a petition for

the

designation

of

an

arbitrator

with

the

Bureau

of

Conciliation and Arbitration.

Boiled

matters.

parties

First,

down, we

Section

shall
follow
______________

(Emphasis ours.)

firm and short.

______________

note

five presently

1 provides,

the

following

Second, all time

"[t]he

significant

contracting

procedure. . . ."

requirements are notably

Third, the complaining employee "shall take

__________

-4-

his/her case"

to the employer's attention

days after the occurrence."

__________________________

"within three (3)

________________

Fourth, within three days after

an employer decision the dissatisfied party may submit to the

Grievance Committee.

Fifth,

the only provision for bringing

the "case before an

arbitrator" is (Sec. 3), "no

later than

ten (10) days from

the date on which the decision

is issued

by the Grievance Committee."

Item third was done too late, unless this grievance

was a new grievance, occurring every day.

done,

ever.

The

fifth did

not

The fourth was not

occur unless

seeking

an

arbitrator before a Grievance Committee decision qualifies as

______

"no

is

later than ten days from

issued."

This

the date on which the decision

was waived,

however,

procedural arbitrability, by El Mundo's

on the

issue

of

specific submission,

leaving procedure, to the degree open under the agreement, to

the arbitrator.

John Wiley & Sons, Inc. v.

________________________

U.S. 543, 557-58 (1964).

II.

A.

Introduction
____________

The Arbitration
_______________

Livingston, 376
__________

The parties were unable to agree on the question to

be submitted.

its

Accordingly, each provided the arbitrator with

own version

of

the

question.

The

Union's

described the issue to be arbitrated as:

The

Company['s]

grant[ing of]

job vacancy of Editor, without

posted

for

the

information

the

its being
of

the

interested employees, to an employee with

-5-

petition

less

seniority,

with more

there

being

personnel

seniority and equally

able to

perform it, among them the injured party.

The petition repeated El Mundo's response, which was, simply,

that the case was not arbitrable.

The arbitrator, purporting to rely upon local rules

when the matter to

be decided had not been agreed

on, said,

in his award, that the question was:

[W]hether
arbitrable

the

or

not

grievance
in

its

is

procedural

aspect.

Should

negative

the

dismissed.

Should he/she rule that it is

arbitrable,

he/she decide
grievance

he/she

shall

in

the

shall

be

issue

the

remedy.

Pausing here, there was a basic question facing the

district court.

B.

It

jurisdiction

interlocutory.

Finality
________

is

essential

for

that the arbitrator's

the

district

decision was

court's

final, not

See, e.g., Local 36, Sheetmetal Workers Int'l

_________ __________________________________

v. Pevely Sheetmetal Co.,

______________________

951 F.2d

947,

949-50 (8th

Cir.

1992); Orion Pictures Corp. v. Writers Guild of Am. W., Inc.,

____________________
_____________________________

946 F.2d

722, 724 (9th

Cir. 1991).

We start

by what

was

before him.

The

behalf

of El

arbitrator heard

Mundo

documents he provided.

testimony

and received

into

from

Mendoza

on

evidence copies

of

Along with the correspondence between

Mendoza and Villalongo, El Mundo provided the arbitrator with

-6-

copies of two earlier arbitration awards arising from similar

belated

on

circumstances and finding in favor of El Mundo based

the Union's

The Union

apparently,

failure to

provided no

only

proceed timely

testimony and no

half-heartedly

with grievances.

documentation, and,

attempted

to

justify its

failure to adhere to the CBA time limits.

The arbitrator's

to be, (1) the arbitrator

agreement, the

If

with

will determine whether, under

he would

the only

presenting

remedy open

timely.

order it dismissed.

he shall order "the

neither party

consider

ante, we read
____

grievance was arbitrable, viz.,

not arbitrable,

arbitrable,

view of the issue,

remedy."

As

evidence on

was an

the merits,

order to

arbitrable

that

in

its

the

grievance

procedural

is

aspect,

since it is of a continuous nature.

Discussion

of

the

If

grievance

we

follow the

The award was as follows:

find

(2)

to this last,

grievance procedure.

[W]e

(3)

the

is

ordered

at

procedure

the

for

that since

third

step

of

the

Grievances.

We consider

this matter has

already been

discussed with the Personnel

Manager, it

would [sic] a futile exercise to go

back

to the first two steps of the procedure.

If
upon

the

on its

the claim,

grievance has
merits by
if it

to

be ruled

this arbitrator,

is in order,

shall be

retroactive to March 8, 1993, the date on

which

the

Union

filed

"Grievance Report."

-7-

the

document

In

finding

jurisdiction

district court assumed this to

to the

point, the Union,

without discussion,

be a final order.

the

Even more

representing the grievant,

in its

pleading specifically so stated:

2.
been

The subject matter at issue has

arbitrated, and a final award which

is binding between the parties, under the

terms

and conditions

of the

CBA and/or

applicable law, has been issued.

The Union is bound by its pleading.1

III.

Analysis
________

A. Is the Award Reviewable?

________________________

In

general,

even

final

and

binding arbitration

awards

are not

subject

to judicial

review.

See
___

General
_______

Drivers, Warehousemen & Helpers, Local 89 v. Riss & Co., 372

__________________________________________
__________

U.S. 517, 519 (1963); United Steelworkers v. Enterprise Wheel

___________________
________________

& Car Corp.,

_____________

363

U.S.

593,

596

Paperworkers Int'l Union, AFL-CIO

__________________________________

29, 38 (1987), the

is

even arguably

scope of

In

v. Misco, Inc.,
___________

Court said, "[A]s long as

construing

acting within the

(1960).

or applying

United
______

484 U.S.

the arbitrator

the contract

his authority, that

and

a court

is

____________________

1.

While

briefly

unnecessary
with

paragraph was a

the

under

argument

the
that

circumstances,
the

we

arbitrator's

retention of jurisdiction.

deal
third

Third Step, the

processing by the Grievance Committee, is a proceeding all by

itself.

disappointed

party

may

subsequently

seek

arbitration,

but it would be a choice, a new proceeding, not

preordained.

We regard the

date the grievance should

of

arbitrator's statement as to the

begin to be merely a

spelling out

the interpretation on which he based his finding that the

claim

was

a day

to day

claim arising

daily.

It

had no

independent consequences.

-8-

convinced

he committed

overturn

his decision."

serious

At

that "the arbitrator's award

error does

the same time

not suffice

to

the Court stated

settling a dispute with respect

to

the interpretation

must draw

or application

its essence

from the

of a

labor agreement

contract and

cannot simply

reflect the arbitrator's own notions of industrial justice."2

If

the arbitrator fails to

no

choice

but

to

Enterprise Wheel,
________________

present

case

exists

because

meet this standard, "courts have

refuse

363

enforcement

U.S. at

this admittedly,

the arbitrator

597.

of

the

We feel

extremely

enlarged

award."

that in

the

narrow exception,

the agreement

and

exceeded his authority under the CBA.

promptly

B.

Was There a Continuing Violation?

_________________________________

To

comply

or

lose

Carpenters & Joiners

with

his

grievant's

claim,"

Local No.

Sabree
______

"obligation

v.

33, 921 F.2d

to

file

United Bhd. of
_______________

396, 402

(1st

___________________________________

Cir.

1990), the

arbitrator found

continuous nature;"

For

this he

that the

claim "is

of a

"arises and is renewed from day to day."

cited arbitration

decisions where

an employer

____________________

2.

We have found there

may be critical distinctions between

Misco and claims which may be made in other cases.

_____
"[t]he specific
arbitrator

could

issue was
limit

whether, under the

the

evidence

evidence that had

been before

discharge . . . a

matter on which the

before

the employer at

In Misco,
_____

contract, the
him

to

the time

the
of

contract was silent."

S.D. Warren Co. v. United Paperworkers' Int'l Union, AFL-CIO,

_______________
__________________________________________
Local 1069, 846 F.2d 827, 828 (1st Cir. 1988) (setting aside
___________
arbitrator's determination under Misco as unsupported by
_____
essence of the agreement.)

-9-

the

changed

rate

employees of

daily pay.3

direct "act or

naming

of pay

action."

or

The

work

diminishing or

daily failure to

The act or occurrence

of a person to the editorship.

depriving

pay was the

here was the

Pay was not the act,

but was merely one of its consequences.

This is of logical

and practical significance.

the ordinary case of loss of pay, or of work,

be

remedied

in

due course,

as

of

the

In

the matter can

date

of

late

grievance, if

it

still continued,

belated order

without prejudicing

employer.

incumbent

of a special office requiring posting and have her

position, disturbs

the extent of

that a grievant

settled order.

giving the grievant

should oust

the

If recognized

an

simply to

the increased salary,

it

will be paying her for work she is not doing, and doubles the

employer's costs.

The

occurrence.

appointment

appointment

Clearly an

settled

employee claiming loss

____________________

at

of

an

editor

employer has

the

outset, and

of it complain

is

right to

require

specific

have an

that

an

promptly, and not

be

3.

Quaker
State Refining
Corp.,
________________________________

(continuing
failure

violation

to object

from

loss

to erroneous

Co.,
___

out work

to non-union

39 LA 567 (1962)

pay raise).

of

LA

pay

61 LA

(1982)

through

union's

90 (1972)

seniority);
(employer

employees); Sears, Roebuck &

_________________

(reduction in commission

The arbitrator did not mention,

procedure, two

1328

designation of

Lockheed Missiles & Space Co.,

_______________________________
farmed

78

similar cases, but where

and loss of

if only as shop

El Mundo prevailed.

See In re Judith Borunet, Case No. A-1320 (1989); In re Ramon

___ ____________________
___________
Viscarrondo and Luis Enrique Marrero, Case No. A-2250 (1983).
____________________________________

-10-

allowed

to

convenience.

wait

until

such

time

as

The arbitrator's purported logic

of plain language has rejected this right.

basic nature

provisions

out of

the

contract,

We affirm

ignoring

his/her

and treatment

By misstating the

of the occurrence the arbitrator

Paperworkers, ante.
____________ ____

court.

serves

read the time

its

the rulings of

"essence."

the district

-11-