"mere request" to the recalcitrant union "to engage in tripartite arbitration, absent more, does not constitute such a grievance . . . . It does not claim a breach of the collective bargaining agreement." Id. Thus the employer could not compel bipartite, much less, tripartite arbitration. Id.
In this case, however, the parties do meet the primary requirement that they "first must have a duty to engage in separate bipartite arbitration over the subject matter involved." Id. All parties involved are contractually obligated to arbitrate. Through filing a lawsuit, by moving to align itself as a plaintiff in this action, and by arguing in the instant pleadings for tripartite arbitration on its own terms, NRLCA has demonstrated its desire for arbitration. NALC obviously wants bipartite arbitration and would not object to tripartite arbitration before its own arbitrator. Therefore, "the requisite contractual nexus is present: all of the parties have agreed to the arbitration of the merits of the current dispute." USPS, 893 F.2d at 1120.
Tripartite arbitration is desired by the parties, and it is appropriate in light of the governing agreements. Common sense also dictates this result in craft assignment disputes where the two unions both claim the work at issue. This Court concludes, much as the Ninth Circuit recently did, that "compelling all three parties in this case to submit their grievance to the same arbitration is practicable, economical, convenient, and fair. It not only avoids duplication of effort, but also avoids the possibility of conflicting awards." USPS, 893 F.2d at 1121. Accordingly, this Court will order the parties to this case to submit to tripartite arbitration.
B. Choosing the Arbitrator
There remains the question, however, as to who the arbitrator should be. Defendants NALC and NRLCA both argue that there is no authority for the Court either (a) to compel the use of an arbitrator other than the one chosen by the parties, or (b) to choose an arbitrator on its own. The case law is indeed sparse in this area.
Defendant NALC contends that there is no basis for imposing an arbitrator upon the parties. It points out that in those cases where tripartite arbitration has been ordered the parties did not dispute the choice of arbitrator. And indeed it is true that this issue has not squarely confronted the courts that have compelled such procedures. Plaintiff acknowledges this lack, but argues that because many of the decisions compelling tripartite arbitration gave no indication that the identity of the arbitrator had been agreed upon, it does not present any obstacle. Indeed, plaintiff urges the Court to name a specific arbitrator or arbitrators. Defendant NALC, on the other hand, argues that the nonexistence of supporting case law hinders the Court from doing so.
One court, in dicta, suggested that compelling tripartite arbitration may be stymied if the collective bargaining agreements provide for disparate methods of selecting an arbitrator. Laborers' International Union, 686 F.2d at 1275 n. 3. In this case, the relevant agreements indicate that this may not be a concern, for they both provide for similar methods: they each have previously selected panels from which arbitrators are chosen. See NRLCA Agreement, Art. 15 § 5C; NALC Agreement, Art. 15 § 4.
Moreover, in this case the parties have chosen arbitrators, albeit two different ones. NALC chose Arbitrator Richard Mittenthal pursuant to the USPS-NALC agreement, and claims that the only acceptable course is for him alone to preside. Although vehemently opposed to arbitration if solely before Arbitrator Mittenthal, NRLCA has proposed another arbitrator, Mr. Nicholas Zumas -- who would be the choice pursuant to the USPS-NRLCA agreement had NRLCA filed a grievance -- to serve as co-arbitrator with Mr. Mittenthal. Plaintiff USPS would be amenable to either option.
Having considered the arguments proffered by the parties, this Court concludes that tripartite arbitration must go forward before both arbitrators, serving jointly. By this means, all parties' concerns are addressed. NALC does not lose its choice of arbitrator. NRLCA gains a voice in the selection of arbitrator. Because both unions will have had a say in the selection, an important interest promoted by arbitration is preserved: the voluntary consent of the parties. USPS has already indicated its willingness to proceed in this manner. Furthermore, given that tripartite arbitration is in essence a consolidation of USPS's two, existing arbitral obligations, see USPS, 893 F.2d at 1120, using one arbitrator of each union's choosing is the sensible solution. Finally, the parties will have the craft-jurisdiction dispute solved in a manner that is final and binding on all interested parties.
Furthermore, there has been no showing that such an approach would prejudice any of the parties. NALC claims that the arbitration can be conducted only in accordance with the terms of its collective bargaining agreement, but this argument must fail. Tripartite arbitration can be compelled, and, strictly speaking, such arbitration is not within the terms of the agreement, and thus not adhering to the letter of the agreement in determining the arbitrator does not doom the arbitration. Moreover, the Court fails to see how the terms of the bargaining agreement can be a bar to conducting the arbitration before an arbitrator chosen in accordance with that agreement (in addition to another arbitrator).
Ordering tripartite arbitration before an arbitrator that the parties had not already selected or preapproved by all the parties concerned is not unprecedented. A district court, in ordering tripartite arbitration, directed that each party have the opportunity to help select the arbitrator. RCA Corp. v. Local Union 1666, 633 F. Supp. 1009, 1015 (E.D. Pa. 1986). Here, both unions have had a role in selecting these arbitrators.
There are no material facts in dispute, and this Court has decided the only question of law.
Accordingly, to the extent that USPS's motion for summary judgment asks to compel NRLCA and NALC to participate in tripartite arbitration, it is granted.
In light of the above conclusions that tripartite arbitration is warranted, and that it shall occur before both Arbitrator Mittenthal as well as Arbitrator Zumas, the remaining motions need not be determined on the merits.
For the foregoing reasons, it is hereby
ORDERED that plaintiff's motion for summary judgment is granted; it is
FURTHER ORDERED that the parties submit to tripartite arbitration before Arbitrators Mittenthal and Zumas; and it is
FURTHER ORDERED that all other pending motions in this action be dismissed as moot.
IT IS SO ORDERED.