met a second time to discuss the disciplinary action taken against Johnson. Plaintiff's Statement of Material Facts para. 10; see Answer and Counterclaim at 6, para. 11.
Unable to resolve the grievance informally, the Union submitted the dispute to binding arbitration pursuant to the terms of the collective bargaining agreement. Defendant's Statement of Material Facts para. 7; Exhibit B para. 21.3 to Complaint. The arbitrator heard the matter on July 12, 1983 and August 10, 1983, and rendered his decision on November 3, 1983.
The arbitrator found that Johnson "was guilty of direct disobedience of an appropriate order, and that he compounded his offense by a threat to do bodily harm to a supervisor if he were disciplined for his insubordination conduct." Exhibit B at 7 to Complaint. The arbitrator refused to uphold the discharge, however, because of the company's failure to fully disclose all reasons for the decision "until after the judgment [to discharge Johnson] was reached." Id. at 6.
Specifically, the arbitrator found that at both grievance meetings, company officials told Johnson and Union representatives that the discharge was based on Johnson's insubordination and failure to follow instructions on October 23, 1982. After the second meeting, the company's personnel supervisor asked one Union representative to review Johnson's personnel file. Thereafter, during the arbitration hearing, the personnel supervisor, who was the company's final decision maker, stated that he relied on the acts of insubordination plus Johnson's past disciplinary record and a newspaper clipping of Johnson's conviction of battery in an incident involving a former girlfriend. Id. at 5.
Because reliance on the past record and newspaper clipping was not disclosed timely, the arbitrator overturned the discharge and ordered Johnson's reinstatement without back pay, id. at 6-8, which amounted to a one-year suspension.
Safeway refused to follow the arbitration award and, instead, instituted this action.
The parties do not dispute the scope of judicial review of an arbitration award. The law is well settled that the courts' role is limited to determining whether the award "draws its essence from the collective bargaining agreement." United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).
This standard prohibits courts from reviewing the merits of an arbitration award. "The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards." Id. at 596. Courts traditionally have refused to become another layer of review and cause of delay, Office and Professional Employees International Union, Local 2 v. Washington Metropolitan Area Transit Authority, 233 U.S. App. D.C. 1, 724 F.2d 133, 137 (D.C. Cir. 1983), recognizing the utility of the arbitral process. "Arbitration of such disputes is faster, cheaper, less formal, more responsive to industrial needs, and more conducive to the preservation of ongoing employment relations than is litigation; . . . ." Devine v. White, 225 U.S. App. D.C. 179, 697 F.2d 421, 435 (D.C. Cir. 1983).
Rather, courts are limited strictly to determining whether the arbitrator "grossly deviate[d]" from the authority conferred on him by the collective bargaining agreement or from the issues submitted for arbitration.
Office and Professional Employees International Union, Local 2 v. Washington Metropolitan Area Transit Authority, 724 F.2d at 140; United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960). An arbitrator's disregard of his conferred authority would produce an award that did not "draw its essence" from the labor agreement, and thus could not be upheld by a reviewing court. But under the law of the District of Columbia Circuit, "the case must present egregious deviations from the norm before [the courts] will abandon the firmly-established principle of deference." Office and Professional Employees International Union, Local 2 v. Washington Metropolitan Area Transit Authority, 724 F.2d at 137.
The courts' deference to arbitration awards, however, does not grant to arbitrators unrestrained authority. As stated previously, arbitration is a matter of contract and the arbitrator's authority is limited by the arbitral agreement. Davis v. Chevy Chase Financial Limited, 215 U.S. App. D.C. 117, 667 F.2d 160, 165 (D.C. Cir. 1981). "When an [arbitrator] ventures outside the scope of authority conferred on [him] by the collective bargaining agreement, [he] lacks power to bind the parties." Northwest Airlines, Inc. v. Air Line Pilots Association International, 174 U.S. App. D.C. 196, 530 F.2d 1048, 1050 (D.C. Cir.), cert. denied, 426 U.S. 942, 49 L. Ed. 2d 394, 96 S. Ct. 2663 (1976). A court is precluded from giving effect to such an award. Davis v. Chevy Chase Financial Limited, 667 F.2d at 165.
An arbitrator's authority is confined to interpreting and applying the collective bargaining agreement. He may not substitute his view of what the parties to an agreement should have agreed to for what the parties actually did agree to. Morgan Services, Inc. v. Local 323, Chicago and Central States Joint Board, Amalgamated Clothing and Textile Workers Union, 724 F.2d 1217, 1224 (6th Cir. 1984); see Washington Hospital Center v. Service Employees International Union, Local 722, 112 LRRM 3008 (D.D.C. 1983). By exceeding his authority and in effect rewriting the collective bargaining agreement, the arbitrator improperly would be "dispensing his own brand of industrial justice." United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. at 597.
Plaintiff in the instant action argues (1) that the arbitrator exceeded his scope of authority by modifying the collective bargaining agreement and (2) that even if the award was not an improper modification, the basis of the arbitrator's decision was supported by no evidence in the record. The Court finds both arguments to be without merit.
A. Scope of Authority
In overturning the company's discharge of employee Johnson, the arbitrator stated in part that he found
merit in the Union's objection that the Company in relying on the grievant's past record in reaching its final judgment to discharge him did not disclose that reliance to the Union until after the judgment was reached. Similarly the reliance on the newspaper clipping, which reliance was not disclosed to the Union or to grievant, was improper.