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WASHINGTON HOSP. CTR. v. SEIU

September 30, 1983

WASHINGTON HOSPITAL CENTER, Plaintiff
v.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 722, AFL-CIO, Defendant ; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 722, AFL-CIO, Plaintiff v. WASHINGTON HOSPITAL CENTER, Defendant


Harold H. Greene, District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, District Judge: --

 In all four instances, the position of the Union will be upheld and that of the Hospital rejected.

 I

 No. 83-0700 (the "Unit Clerks" case) involves a grievance filed by the Union on behalf of all unit clerks employed at the Hospital based on increased duties and responsibilities allegedly justifying reclassification. The Hospital requested dismissal of the grievance for being untimely, a class grievance (which it claims is not a proper grievance under the Agreement), procedurally defective, and outside the scope of the grievance and arbitration procedure. The arbitrator found the unit clerks' grievance arbitrable, and the Hospital seeks to vacate.

 No. 83-0818 (the "Holiday Pay" case) concerns the Hospital's policy of scheduling an employee who works on a holiday for a day off sometime during the holiday week, a policy which the Union claims violates the Agreement's provisions governing holiday pay. The arbitrator ruled in favor of the Union, and the Hospital asks the Court to overturn that decision, claiming that the Union's grievance was untimely, and that the award should have been limited to those employees who signed the grievance.

 No. 83-1192 (the "Johnnie Green" case) involves a grievance filed by the Union on behalf of an employee who requested his reclassification as a pulmonary laboratory technician since he had allegedly been performing the duties of that position for 3-1/2 years. The arbitrator ruled for the employee. *fn1" The Hospital contends that the grievance was untimely, and that it was not arbitrable, contending that there is no provision in the Agreement which would allow for personal pay rates not set forth in the schedule of pay rates in the Agreement. It also seeks to vacate the pay rate awarded to the grievant by the arbitrator as not being supported by the record.

 With respect to all the cases, the Hospital concedes, as indeed it must, that arbitration as a means of resolving labor disputes is favored and that courts will, except in unusual circumstances, refrain from reviewing the merits of an arbitration award. See United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 46 LRRM 2414, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 46 LRRM 2416, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 46 LRRM 2423, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960) (" Steelworkers Trilogy "). In the Hospital's view, however, such circumstances are present here because the several arbitrators *fn2" exceeded their authority. A careful review of the facts and issues in the three cases indicates that the Hospital's argument concerning extraordinary circumstances merely masks its all-too-ordinary displeasure with the decisions of the arbitrators on the merits.

 The arbitrator's procedural decisions are also quite reasonable, and not at all contrary to the express language of the Agreement. On the issue of timeliness, the arbitrators in the Unit Clerks case and the Holiday Pay case found that there were continuing violations and that therefore the grievances were not filed in an untimely fashion -- reasons for excusing alleged untimeliness that are as common in judicial as in arbitration proceedings. In the Johnnie Green case, the arbitrator found that the Hospital had waived the defense of untimeliness by raising it for the first time at the arbitration meeting rather than in the first or second step of the grievance procedure. As for the Hospital's objection to class grievances (the Unit Clerks case, the Holiday Pay case), nothing in the Agreement precludes them. *fn4" Finally, in the Unit Clerks case, where the grievance was filed at the third step of the grievance procedure, the arbitrator not inappropriately held that the Union did not violate procedural prerequisites since under the circumstances it would have been unrealistic and futile for each and every unit clerk to file an individual grievance at either the first or second step of the grievance procedure. *fn5"

 A leading scholar has explained;

 
The arbitrator is the parties' officially designated 'reader' of the contract. He (or she) is their joint alter ego for the purpose of striking whatever supplementary bargain is necessary to handle the anticipated omissions of the initial agreement. Thus, a 'misinterpretation' or 'gross mistake' by the arbitrator becomes a contradiction in terms. In the absence of fraud or an overreaching of authority on the part of the arbitrator, he is speaking for the parties and his award is their contract.

 St. Antoine, Judicial Review of Labor Arbitration Awards, A Second Look at Enterprise Wheel and Its Progeny, 75 Mich. L. Rev. 1137, 1140 (1977). The Court of Appeals for this Circuit held similarly that only where there are procedural flaws indicating the possibility of a miscarriage of justice may a court upset an arbitrator's award. Lewis v. Greyhound Lines-East, 181 U.S. App. D.C. 116, 555 F.2d 1053, 95 LRRM 2449 (D.C. Cir. 1977). See also Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 143 U.S. App. D.C. 210, 442 F.2d 1234, 1239, 76 LRRM 2274 (D.C. Cir. 1971) (an award will not be vacated even though the arbitrator may have made errors of fact and law, unless it "compels the violation of law or conduct contrary to accepted public policy"). As indicated above, none of the arbitrators' decisions in these cases even remotely falls in that category. *fn6"


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