UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
November 15, 1973
WASHINGTON-BALTIMORE NEWSPAPER GUILD, LOCAL 35, OF the AMERICAN NEWSPAPER GUILD AFL-CIO
The WASHINGTON POST COMPANY
Aubrey E. Robinson, Jr., District Judge.
The opinion of the court was delivered by: ROBINSON, JR.
AUBREY E. ROBINSON, Jr., District Judge.
This is an action to enforce a labor arbitration award pursuant to 29 U.S.C. § 185, presently before the Court on cross-motions for summary judgment. Defendant does not contest the validity of the arbitration award. Defendant argues, rather, that it has "complied" with the award by paying to the grievant former employee (hereafter "employee") the amount of the award
less a set-off of amounts allegedly due from the employee to the Company to repay an advance not fully used before his discharge.
Defendant contends that neither the Arbitrator's Award nor the underlying contract precludes the set-off asserted herein. Plaintiffs dispute this. It would seem that this dispute is itself a question concerning "application of (the) Agreement" which should have been submitted to arbitration.
Yet the set-off issue was not submitted before the arbitration proceeding already conducted in this case, and therein lies the crux of the matter. Defendant asks for a "remand" so that the arbitrator may now consider the questions raised by the assertion of a set-off against the Award. At the arbitration hearings herein, however, Defendant's counsel affirmatively, represented that the question of amounts due from the employee was "not in this case."
The argument of Defendant that it has in fact "complied" with the award herein is semantic inventiveness at its best. It is undisputed that the amount found due the employee "subject only to tax deductions" has not been paid. The real issue herein is not compliance, but whether Defendant had a legal right, after the Arbitrator's Award was entered, to assert the set-off claimed herein.
The Court does not believe that Defendant has such a right, and summary judgment will accordingly be entered for the Plaintiff.
The issue before this Court is a narrow one. There is no issue here as to whether the Company may yet maintain an independent action to enforce its claim against the employee. Nor is there a counterclaim presently before the Court.
The sole issue here is the affirmative defense of set-off. The Court concludes that having failed to raise this defense before the arbitrator the Company is barred from asserting it herein to resist enforcement or to obtain a "remand" to the arbitrator.
Defendant has proffered no reason whatever for its failure to present the set-off issue before the Arbitrator. It does argue that this failure was reasonable since the Company's liability was questionable and the issue of set-off need not be considered until liability is established. Yet the policy of the law, both in litigation and arbitration, is to resolve the entire matter involving one claim and defenses thereto in one proceeding, with later appellate review of the entire case.
Acceptance of Defendant's argument would provide a party the option of piece-meal proceedings, asserting a new "fall-back" position only after rejection of its initial arguments. To allow this "would undercut the finality and therefore the entire usefulness of arbitration as an expeditious and generally fair method of settling disputes." Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Company, 143 U.S. App. D.C. 210, 442 F.2d 1234, 1238 (1971).
Plaintiff has a concededly valid arbitration award establishing its claim against defendant. Defendant has a disputed
claim against its employee. Whatever may be Defendant's rights to pursue its claim independently, it cannot resist enforcement here on grounds not raised before the arbitrator.