
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2122                       LABOR RELATIONS DIVISION OF CONSTRUCTION                      INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,                                Plaintiffs-Appellees,                                          v.                  INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS,                   WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL #379,                                 Defendant-Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Breyer,* Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Torruella, Circuit Judge.                                           _____________                                _____________________               Paul F. Kelly,  with whom Anne R. Sills and Segal, Roitman &               _____________             _____________     ________________          Coleman were on brief for appellant.          _______               John D. O'Reilly  III, with  whom O'Reilly &  Grosso was  on               _____________________             __________________          brief for appellees.                                 ____________________                                    July 19, 1994                                 ____________________                                        ____________________          *   Chief Judge Stephen Breyer heard oral argument in this matter          but did not  participate in the drafting  or the issuance  of the          panel's  opinion.   The remaining  two panelists  therefore issue          this opinion pursuant to 28 U.S.C.   46(d).                    TORRUELLA, Circuit  Judge.   The circumscribed  role of                               ______________          federal  courts reviewing  arbitration awards  in labor  contract          disputes is now well established.  As the  Supreme Court found in          United  Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36-          ________________________________    ___________          45 (1987), courts must resist the temptation  to substitute their          own  judgment about  the  most  reasonable  meaning  of  a  labor          contract for that  of the  arbitrator and avoid  the tendency  to          strike down even an arbitrator's erroneous interpretation of such          contracts.     Instead,   courts  must   confine  themselves   to          determining whether the arbitrator's construction of the contract          was in any way plausible.                    The issue in this case is whether any plausible reading          of a  collective bargaining  agreement  supports an  arbitrator's          ruling   in  a   dispute  over   fringe   benefit  contributions.          Plaintiffs-appellees, J.M.  Cashman, Inc. and R.  Zoppo Co., Inc.          (the  "plaintiffs"  or  "Cashman   and  Zoppo"),  challenged  the          arbitration   order,   which  favored   the  defendant-appellant,          International Brotherhood of Teamsters,  Chauffeurs, Warehousemen          and Helpers of American, Local 379 (the "Union"), in the district          court.   The  district court  vacated the  arbitration award  and          remanded  the dispute to the  arbitrator for a  new resolution of          the  case.   Because  we find  that  the district  court  stepped          outside  of  its  highly  circumscribed  role  of  assessing  the          plausibility of the arbitrator's interpretation  of the agreement          between   the   parties,   we   reverse   the  court's   holding.          Nevertheless,  we agree  with the  district  court that  the case                                         -2-          should  be remanded to the arbitrator for resolution of a related          issue of federal law.                                    I.  BACKGROUND                                    I.  BACKGROUND                    This case arises  out of the  arbitration of a  dispute          between the Union and  a group of contractor-employers, including          plaintiffs  Cashman and  Zoppo, involved  in the  construction of          waste water  treatment facilities  in Boston Harbor  (the "Boston          Harbor Project").  On  March 2, 1992, the Union  filed grievances          against Cashman, Zoppo, and six other project employers, claiming          that truck drivers  on the  Boston Harbor Project  who owned  and          drove  their  own  trucks,  so  called "owner-operators,"  should          receive certain  fringe benefit contributions  that the employers          were  already paying  on behalf  of other  Boston  Harbor Project          employees.    The  grievances  asserted that  the  Boston  Harbor          Project  Labor Agreement  ("Project  Agreement"),  signed by  the          Union  and  the employers,  required  that the  same  "health and          welfare  contributions  and all  pension  contributions"  made on          behalf of  other employees  must also  be made on  behalf of  the          owner-operators.                    The employers  claimed that  they did  not have  to pay          fringe benefits on behalf of owner-operators because the contract          did not require it  and, more importantly, because the  Union and          many  of the employers had a long-standing practice of not paying          such  owner-operator  benefits  going  back at  least  twenty-six          years.  According to the employers, this practice was established          after the Union  and certain employer-contractors on a  number of                                         -3-          state  construction projects  (not  including  Cashman and  Zoppo          themselves)  agreed  that, to  the  extent  a nucleus  of  owner-          operator  truck  drivers  would  be  present  on  any  individual          construction project, the  employers would not be required to pay          fringe benefits  for the owner-operators.   The employers working          on  the  Boston Harbor  Project, who  were  required to  sign the          Project  Agreement in  order to  bid initially  on the  work, see                                                                        ___          Building  &  Constr.  Trades  Council v.  Associated  Builders  &          _____________________________________     _______________________          Contractors,  Inc., 113 S. Ct.  1190 (1993), rev'g,  935 F.2d 345          __________________                           _____          (1st  Cir. 1991)  (en banc), maintained  that they  expected this          established  practice  to  continue  as  in   previous  projects.          Cashman and Zoppo, however, had never entered into  a contractual          relationship  with the  Union before  the Boston  Harbor Project.          Consequently, no past practices  had been established between the          Union and the plaintiffs themselves.                    Pursuant to the Project Agreement, the dispute over the          fringe benefits was brought  before an arbitrator for resolution.          On January 20, 1993, the  arbitrator found in favor of  the Union          and  ordered the  plaintiffs  and  the  other employers  to  pay,          retroactively, post-grievance benefits  and to pay  future fringe          benefit  contributions on  behalf  of  the  owner-operator  truck          drivers.   In his accompanying opinion,  the arbitrator explained          that  certain provisions  of the  Massachusetts Teamsters'  Heavy          Construction   Agreement   ("Teamsters  Agreement"),   which  was          incorporated into the Project  Agreement, in conjunction with the          Project Agreement itself, explicitly obligated employers to  make                                         -4-          health  insurance  and pension  contributions  on  behalf of  the          owner-operators in question.                    At  issue in  this appeal  is the  arbitrator's finding          that  the past  practice of  not paying  the fringe  benefits for          owner-operators did not bind the parties in this case because the          Project Agreement "wiped the slate clean" of such past practices.          The arbitrator relied on  the following language in  the preamble          of the Project Agreement to support his finding:                      No  practice, understanding  or agreement                      between  a Contractor  and a  Union party                      which is not explicitly set forth in this                      Agreement shall  be binding on  any other                      party  unless endorsed in  writing by the                      Project Contractor.          By  interpreting this language as negating all past practices and          understandings  not  explicitly  set  forth  within  the  Project          Agreement,  the  arbitrator disregarded  the  voluminous evidence          presented  by  the  employers  of  the  established  practice  of          excluding  owner-operators from fringe benefit contributions.  As          a result,  the language  of the  Project Agreement granting  such          benefits was found to be controlling.                    Also at  issue on  appeal is  the  related question  of          whether   the  owner-operator   truck  drivers   are  independent          contractors or  employees.  If they  are independent contractors,          Section 302  of the Labor  Management Relations Act  ("LMRA"), 29          U.S.C.    186,  would prohibit fringe  benefit payments  on their          behalf.    The arbitrator  acknowledged  that  the employers  had          argued that fringe benefit payments for the owner-operators would          be illegal under  Section 302, but he  made no explicit  legal or                                         -5-          factual findings on the issue in his opinion.  While a  rejection          of  the employers'  contention was  implicit in  the arbitrator's          award favoring  the Union, nothing indicates  that the arbitrator          actually determined whether the owner-operators were employees or          independent contractors for purposes of the LMRA.                    Following  the entry of the arbitrator's award, Cashman          and Zoppo filed a complaint in the district court on February 19,          1993, requesting that  the court  vacate the award.   On  summary          judgment,  the  district  court  held  that  the  arbitrator  had          impermissibly exceeded his authority by misapplying the plain and          unambiguous language of the Project Agreement preamble concerning          past  practices, thereby  failing to  duly consider  the evidence          that the parties had a practice of not paying fringe benefits for          owner-operators.    The  district   court  found  that  the  past          practices provision  of the  preamble -- particularly  the words,          "no practice . . . shall be binding on any other party" (emphasis                                                 _______________          added)  --  clearly  and  unambiguously  meant  that  established          practices between parties A and  B are not meant to  bind outside          party C.  The court found that the phrase could not reasonably be          interpreted to  mean that  all established practices,  even those          between parties A  and B, are completely wiped out by the Project          Agreement.   Consequently, the  court held  that the Union  could          still  be  bound by  the past  practice  of not  requiring fringe          benefit contributions for  owner-operators.   The district  court          vacated  the  arbitrator's award  and  remanded the  case  to the          arbitrator to  determine the merits,  giving proper consideration                                         -6-          to the evidence of past practices.                    The court  also left  for the  arbitrator the  issue of          whether,  in light  of  the court's  holding that  past practices          could   be  considered,   the  owner-operators   are  independent          contractors,  thus rendering  the  payment of  benefits on  their          behalf illegal.                                    II.  ANALYSIS                                    II.  ANALYSIS                    A.  Standard Of Review                    A.  Standard Of Review                        __________________                    It  is well  established that  federal court  review of          labor  arbitral  decisions, particularly  on matters  of contract          interpretation,   is   extremely   narrow  and   "extraordinarily          deferential."  Dorado Beach Hotel Corp. v. Uni n  de Trabajadores                         ________________________    ______________________          de la Industria Gastron mica Local 610, 959 F.2d 2, 3-4 (1st Cir.          ______________________________________          1992);  see,  e.g.,  Misco,  484 U.S.  at  36-45  (1987); Berklee                  ___   ____   _____                                _______          College  of Music v. Berklee  Chapter of Mass.  Fed. of Teachers,          _________________    ____________________________________________          Local 4412,  858 F.2d 31, 32  (1st Cir. 1988), cert.  denied, 493          __________                                     ____   ______          U.S. 810 (1989).   The  court may not  supplant the  arbitrator's          determination of the  merits of  a contract dispute,  even if  it          finds that determination  to be erroneous.   Rather, the  court's          task is limited to determining if the arbitrator's interpretation          of the contract is in any way plausible.   Misco, 484 U.S. at 36-                                                     _____          38;  United Steelworkers  of America  v. Enterprise  Wheel  & Car               _______________________________     ________________________          Corp.,  363 U.S. 593, 599  (1960) ("[S]o far  as the arbitrator's          _____          decision concerns  construction of the contract,  the courts have          no business  overruling him  because their interpretation  of the          contract is  different from  his."); El Dorado  Technical Servs.,                                               ____________________________                                         -7-          Inc.  v. Uni n General de  Trabajadores de Puerto  Rico, 961 F.2d          ____     ______________________________________________          317, 319 (1st Cir.  1992) ("[A] court should uphold an award that          depends  on  an  arbitrator's  interpretation   of  a  collective          bargaining agreement if it  can find, within the four  corners of          the agreement,  any plausible basis  for that  interpretation.");          Dorado Beach, 959 F.2d at 4; Bacard  Corp. v. Congreso de Uniones          ____________                 _____________    ___________________          Industriales de Puerto Rico,  692 F.2d 210, 211 (1st  Cir. 1982).          ___________________________          "[A]s long  as  the arbitrator  is  even arguably  construing  or          applying  the  contract  and  acting  within  the  scope  of  his          authority, that  a court is convinced he  committed serious error          does not suffice to  overturn his decision."  Misco, 484  U.S. at                                                        _____          38.                    Only in  a few,  exceptional  circumstances are  courts          able  to vacate  an arbitration  award.   When an  arbitrator has          exceeded  his authority  by  ignoring the  clear and  unambiguous          mandates or plain language  of the contract or by  construing the          contract  in a way that cannot possibly be described as plausible          or  rational, a  court  can overturn  the arbitrator's  judgment.          Misco,  484  U.S. at  38 (an  arbitrator's  award "must  draw its          _____          essence  from   the  contract  and  cannot   simply  reflect  the          arbitrator's own notions of  industrial justice"); Dorado  Beach,                                                             _____________          959  F.2d at 4;  Air Line  Pilots Ass'n Int'l v. Aviation Assocs.                           ____________________________    ________________          Inc., 955 F.2d 90, 93  (1st Cir.), cert. denied, 112 S.  Ct. 3036          ____                               ____  ______          (1992); Strathmore Paper Co.  v. United Paperworkers Int'l Union,                  ____________________     _______________________________          900 F.2d 423, 426 (1st Cir. 1990); Georgia-Pacific Corp. v. Local                                             _____________________    _____          27,  United Paperworkers Int'l Union, 864 F.2d 940, 944 (1st Cir.          ____________________________________                                         -8-          1988).                    We reject plaintiffs' contention that our review of the          district court's  vacation of an  arbitration award, based  on an          alleged impermissible interpretation of a contract, is made under          the clearly erroneous standard.   In this case, all  deference is          due to  the arbitrator's interpretation  of the contract,  not to          the interpretation of  the district  court.   The district  court          ruled that the arbitrator  exceeded his authority as a  matter of          law by ignoring  plain and unambiguous language  in the contract.          We  review this finding de  novo and make  our own determination,          according  to  the  standards  described above,  of  whether  the          arbitrator's  application of  the contract  was plausible.   See,                                                                       ___          e.g.,  Upshur Coals Corp. v.  United Mine Workers,  Dist. 31, 933          ____   __________________     ______________________________          F.2d  225,  228 (4th  Cir. 1991);  Delta  Queen Steamboat  Co. v.                                             ___________________________          District  2 Marine Engs. Beneficial Ass'n, 889 F.2d 599, 602 (5th          _________________________________________          Cir.  1989), cert. denied, 498 U.S. 853 (1990); see also Berklee,                       ____  ______                       ________ _______          858  F.2d  at  32-34   (vacating  district  court's  reversal  of          arbitrator's interpretation  of labor contract  without affording          deference to the district court's findings); Bacard , 692 F.2d at                                                       _______          211-14 (implicitly  applying de novo review  in vacating district          court's   finding   that   arbitrator   erroneously   interpreted          collective bargaining agreement).                    B.  The Past Practices Clause                    B.  The Past Practices Clause                        _________________________                    With   this   circumscribed   standard  for   reviewing          arbitration awards in  mind, there  is little  question that  the          arbitrator's interpretation of the  Project Agreement -- at least                                         -9-          to the extent  that he found that the  past practices clause bars          consideration of the plaintiffs' evidence of prior fringe benefit                               __________          arrangements  -- must  be upheld  as a  plausible reading  of the          contract.   This  result  is compelled  because the  arbitrator's          holding comports with the  district court's own interpretation of          the past practices clause  when properly applied to the  facts of          this case.  Thus,  even if the arbitrator exceeded  his authority          in finding that the  past practices clause wiped the  slate clean          of  all established practices between all parties, an issue we do          not decide, he certainly  did not exceed his authority  by wiping          the  slate clean  between the  Union and  the plaintiffs  in this          particular case.                    The  district court  apparently failed to  consider the          possibility that plaintiffs in this case are  "other parties" and          therefore not  privy to  the past  practice  of excluding  owner-          operators  from the payment of fringe benefits.  According to the          district  court,  the  plain   language  of  the  past  practices          provision  in the  preamble provides  merely that  past practices          established between parties A and B shall not be binding on party          C,  although  they  will  continue  to  be  binding  on  A and  B          themselves.   Applying  this interpretation  to the  present case          reveals that fringe benefit practices between the Union and other          employer-contractors (parties  "A" and "B" respectively)  are not          binding on the plaintiffs (both party "C's"), who did not have an          established  past practice with the Union and are thus "any other          parties"  under  the past  practices clause.    As a  result, the                                         -10-          contract  could be  read  to  require  the arbitrator  to  ignore          evidence of  past practices between  the Union and  other parties          when applying the provisions of the Project Agreement to disputes          between   the  Union  and  the   plaintiffs.    Because  such  an          interpretation is a plausible one,  we must reverse the  district          court's vacation  of the arbitration  ruling with respect  to the          arbitrator's construction of the Project Agreement.                    The plaintiffs  take issue with such  an application of          the past practices clause to the  facts of this case.  They argue          that because the  Union itself was privy  to the practice  of not          requiring fringe benefit payments for owner-operators,  the Union          can still be  held to that practice, regardless  of the fact that          plaintiffs  cannot  in  any way  be  bound  by  such a  practice.          Plaintiffs point to the language of the clause, which states that          "[n]o practice . . . between a Contractor and a Union party . . .          shall be  binding on any other  party," to argue that  the clause          itself concerns only the effects of past practices on new parties          to the project agreement but in  no way limits the effect of past          practices on the Union itself.                    The plaintiffs' interpretation is certainly reasonable,          but, for  our purposes, it  is also irrelevant.   Our task  is to          determine  whether  the  arbitrator  exceeded  his  authority  by          failing to apply the contract in a plausible manner, not to  seek          out the  most reasonable meaning  of the contract.   Interpreting          the  past practices  clause to  bar consideration  of plaintiffs'          evidence of past practice in this case is clearly plausible.  The                                         -11-          clause  can be  read to preclude  application of  all established          past practices to "any  other party," even if that practice is in          the  "other party's" favor.   Such  a reading  stems from  one of          several plausible  constructions of  the language in  the clause:          (1) no practice between parties A  and B shall be binding between          parties  A and  C;  (2) practices  not  binding  on party  C  are          likewise unavailable to C for use against parties A or B (i.e., C          is not  entitled to rely on  or benefit from a  practice which is          not  binding on  itself); and  (3) no  practice shall  be binding          unlessalreadyestablished betweenaUnion andaparticular contractor.                    In this case, the  arbitrator could plausibly find that          the practice  of excluding fringe  benefits for  owner-operators,          established  between  the Union  and  other  contractors, is  not          binding between the Union and the plaintiffs.  Alternatively, the          arbitrator  could find  that plaintiffs  cannot benefit  from the          past fringe benefit  practice because each  plaintiff is an  "any          other party"  and thus could not be bound by the practice were it          beneficial to the Union instead of to the employer.                    Plaintiffs  protest  that  we  cannot  now  employ such          reasoning to  retroactively  salvage an  otherwise  unsustainable          arbitration  award.   They  point out  that  even if  the Union's          interpretation  of the  past practices  clause is  plausible, the          arbitrator  did not  arrive at  that interpretation  himself, but          instead,  arrived at  an  interpretation that  ignored the  plain          language of the  contract.   The arbitrator found  that the  past          practices clause wiped  the slate clean of all  practices between                                         -12-          all  parties, not  just  practices between  parties  A and  C  as          discussed  above.    The  arbitration  award  cannot  be  upheld,          plaintiffs argue,  on  the  basis  of an  interpretation  of  the          contract  that the arbitrator did not even make, because, in this          case  at least,  the arbitrator  might have  come to  a different          conclusion  as  to  whether   past  practice  evidence  could  be          considered if  he adopted the district  court's interpretation of          the past practices clause at the time of his decision.                    We  see  no  problem with  upholding  the  arbitrator's          decision on  grounds or reasoning not employed  by the arbitrator          himself.  To begin with, an arbitrator  has no obligation to give          his  or her  reasons for  an  award.   Raytheon Co.  v. Automated                                                 ____________     _________          Business Sys., 882 F.2d 6, 8 (1st Cir. 1989).  Once an arbitrator          _____________          chooses to provide such reasons,  courts should upset the  award,          or remand  for clarification,  only when  "the  reasons that  are                                                                        ___          given strongly imply that the arbitrator may have exceeded his or          her authority."   Randall v.  Lodge No. 1076,  648 F.2d  462, 468                            _______     ______________          (7th  Cir. 1981); see also Cannelton Indus. v. District 17, UNWA,                            ________ _____________________________________          951  F.2d  591,  594  (4th  Cir.  1991)  (remanding  portion   of          arbitration award because  it may have  been based on a  grant of          punitive, as opposed to compensatory, damages, in which  case the          award did not  draw its  essence from  the contract).   Absent  a          strong  implication  that  an  arbitrator  exceeded  his  or  her          authority,  the arbitrator is presumed  to have based  his or her          award on proper grounds.  Saturday Evening Post Co. v. Rumbleseat                                    _________________________    __________          Press,  Inc., 816  F.2d  1191, 1197  (7th  Cir. 1987);  see  also          ____________                                            _________                                         -13-          Chicago  Newspaper  Publishers'  Ass'n v.  Chicago  WEB  Printing          ______________________________________     ______________________          Pressman's Union, 821 F.2d 390, 394-95 (7th Cir. 1987) ("'[i]t is          ________________          only when the arbitrator must  have based his award on some  body                                   ____          of thought,  or feeling, or  policy, or law  that is outside  the          contract  . .  . that  the award  can be  said not  to  'draw its          essence  from the  collective bargaining  agreement.''") (quoting          Ethyl Corp. v. United  Steelworkers, 768 F.2d 180, 185  (7th Cir.          ___________    ____________________          1985)) (emphasis in original).                    In  this  case,   despite  the  arbitrator's  allegedly          erroneous reasoning, there is  nothing to indicate the arbitrator          exceeded his  authority by  not "arguably construing  or applying          the contract."   Misco, 484  U.S. at 38;  see General  Teamsters,                           _____                    ___ ___________________          Auto Truck Drivers &  Helpers, Local 162 v. Mitchell  Bros. Truck          ________________________________________    _____________________          Lines,  682 F.2d 763  (9th Cir.  1982) (upholding  arbitrator for          _____          "doing  the right thing for the wrong reason").  The arbitrator's          interpretation of the  past practices clause  in the preamble  as          precluding  the  use of  past  practice  evidence in  determining          plaintiffs'   obligations  under  the   Project  Agreement  is  a          plausible  interpretation of  the contract and  as such,  must be                                                                    ____          upheld.    El  Dorado,  961  F.2d at  319.    The  fact  that the                     __________          arbitrator's  "wipe-the-slate-clean"  construction  of  the  past          practices clause might indicate  that the arbitrator exceeded his          authority  if he had  applied that construction  to other parties          not  present in this litigation does not  mean that he might have          exceeded  his authority in this particular case.  Rather, we know          the  arbitrator   did  not  exceed  his   authority  because  his                                         -14-          application of the past practice clause to the plaintiffs' claims          drew  its  essence  from  the  collective  bargaining  agreement.          Therefore, we  need not speculate  how the arbitrator  might have          resolved  this  case  had  he  considered  the  district  court's          construction of the contract language at issue.                    C.  Section 302 of the LMRA                    C.  Section 302 of the LMRA                        _______________________                    Unlike  the  dispute  over the  Project  Agreement, the          issue  of whether fringe  benefit contributions on  behalf of the          owner-operators is illegal under federal law does not involve the          same  type  of  circumscribed  judicial  review  that  we  afford          arbitration decisions grounded in interpretations of  a contract.          Although the  arbitrator's factual findings  regarding the status          of the owner-operators under Section 302 of the LMRA, 29 U.S.C.            186,  may deserve  a certain  amount of  deference, the  issue of          illegality is  ultimately one for  federal court review.   Misco,                                                                     _____          484 U.S. at 42-43.  Given that a determination under    302 could          have  criminal  consequences, the  plaintiffs deserve  a thorough          judicial review of an arbitrator's decision as to this issue.                    Neither party disputes that the plaintiffs' payment  of          fringe benefits on behalf of the owner-operators is illegal under            302  if the owner-operators are  independent contractors rather          than employees.  The parties do disagree, however, on whether the          issue was properly decided by the arbitrator and, if not, how the          issue  should now  be resolved.   The  plaintiffs argue  that the          arbitrator did not properly decide the issue and  that we, or the          district  court,   should  find  that   the  owner-operators  are                                         -15-          independent contractors, effectively  nullifying the  arbitration          award.  The Union argues that the arbitrator correctly found that          the owner-operators were employees and that we should uphold this          finding.                    The  arbitrator  did,  at  the  very  least, implicitly          decide  the    302 issue  by granting  an award  in favor  of the          Union.    However,  we  are  not satisfied  that  the  arbitrator          conducted  the  appropriate  statutory analysis  for  making  the          required  factual determination  of the  owner-operator's status.          Distinguishing  between employees and independent contractors for          purposes  of the LMRA is governed by general principles of agency          law.  National Labor Relations Bd. v. Amber Delivery Serv., Inc.,                ____________________________    __________________________          651  F.2d 57,  60 (1st  Cir. 1981).   Courts  have spelled  out a          number of factors to be considered in making the determination of          a  party's status,  including various  indicia of  the employer's          "right  to control" certain aspects of that party's work.  Amber,                                                                     _____          651 F.2d at 61; Construction, Bldg. Material, etc., Local No. 221                          _________________________________________________          v. National Labor Relations  Bd., 899 F.2d 1238, 1240  (D.C. Cir.             _____________________________          1990); North Am. Van Lines, Inc.  v. N.L.R.B., 869 F.2d 596, 599-                 _________________________     ________          600 (D.C. Cir.  1989); H. Prang  Trucking Co. v. Local  Union No.                                 ______________________    ________________          469, 114 L.R.R.M. 3617 (D.N.J. 1983).  Although the intent of the          ___          parties when they  entered into a contractual relationship may be          relevant  to determining an  employer's "right to  control" or to          other  aspects of  the agency  test, no  one factor  is decisive.          Todd  v. Benal Concrete  Constr. Co, 710 F.2d  581, 584 (9th Cir.          ____     __________________________          1983),  cert. denied, 465 U.S. 1022 (1984); Amber, 651 F.2d at 61                  ____  ______                        _____                                         -16-          (citing  N.L.R.B. v. United Ins.  Co, 390 U.S.  254, 258 (1968)).                   ________    _______________          Rather,  all of  the incidents  of the  relationship between  the          employer and the alleged  employee must be assessed.   Amber, 651                                                                 _____          F.2d at 61.                    Given  the arbitrator's  exclusive  focus on  the  past          practices issue  and on provisions  of the contract  dealing with          fringe  benefit contributions,  we have  serious doubts  that the          arbitrator actually conducted a proper   302 agency test analysis          in this case.  There is no  reason to believe, as the Union seems          to  suggest, that  the arbitrator's  decision regarding  the past          practices clause, which we uphold in this opinion, is dispositive          not only of the underlying contractual dispute, but of the    302          issue as well.  Past practices are only one facet of the complete          agency  test  under      302.    Consequently,  the  arbitrator's          discussion  of  the  Project Agreement  and  the  import  of past          practices concerning  the owner-operators, while relevant  to the          parties'  intended working relationship and thus to the status of          the owner-operators  in this  case, is  not itself  sufficient to          convince  us that  a  complete    302  agency test  analysis  was          undertaken.   We  cannot,  therefore, defer  to the  arbitrator's          implicit factual finding on the owner-operators' status to uphold          the arbitration award  until a  more complete    302 analysis  is          conducted.                    We are not prepared,  however, to conduct that analysis          ourselves without first giving  the arbitrator the opportunity to          reexamine  the factual  circumstances of  this case.   Plaintiffs                                         -17-          asserted  in  their action  before  the district  court  that the          arbitration award  is unenforceable  because it  violates federal          law.   The district court  declined to review  this claim because          the  court vacated  the arbitration  award on  the issue  of past          practices.  Because we now  reverse the district court's  ruling,          we are left with plaintiffs'   302 allegations, which have yet to          be properly adjudicated.   In  turn, we are  not disposed  toward          making  factual findings in the first instance, given the absence          of  explicit factual  findings  from the  district  court or  the          arbitrator, that  are required for a proper  determination of the          owner-operators'  status.    Although  a  largely  uncontradicted          record exists in  this case that would allow us  to resolve the            302 issue if we  needed to, we consider ourselves too far removed          from the dispute to properly  weigh the various factors  involved          in this  fact-intensive determination.  In other words, we refuse          to uphold the arbitrator's finding because plaintiffs have raised          a claim meriting  federal judicial  review yet we,  as a  federal          appeals court, are  not in  a suitable position  to conduct  that          review.                    Unfortunately,  the  district  court  is  in  the  same          position that we are in with respect to determining the status of          owner-operators.   Consequently,  we decline  to remand  the case          directly to  the district  court for a  resolution of  the    302          issue.  The district court itself chose to remand the proceedings          instead of deciding the merits of the case and we think it is the          court's prerogative to  do so.   Although federal  courts have  a                                         -18-          duty to  scrutinize such  federal issues with  potential criminal          consequences,  the  arbitrator  can  play an  important  role  in          providing  first-hand factual  findings  for the  benefit of  the          reviewing  court.     Therefore,  we  remand  this  case  to  the          arbitrator for  a  separate determination  of the  status of  the          owner-operators under   302.                    The plaintiffs  do not dispute our  authority to remand          actions   to  the   arbitrator;   however,  they   claim  it   is          inappropriate to do so when the issue on remand is one of federal          law.   We disagree with their contention that it is inappropriate          for an arbitrator to apply federal statutes.  On the contrary, it          is well established that certain statutory claims may  be decided          through arbitration.    See  Gilmer  v.  Interstate/Johnson  Lane                                  ___  ______      ________________________          Corp., 500  U.S.  20, 26  (1991);  Page v.  Moseley,  Hallgarten,          _____                              ____     _____________________          Estabrook & Weeden, Inc., 806 F.2d  291, 295 (1st Cir. 1986).  We          ________________________          see no reason why the arbitrator cannot make the factual findings          necessary  to resolve the   302  issue in this case.  Determining          the   status  of  owner-operators   is  particularly  within  the          arbitrator's domain  since it involves  analyzing various aspects          of  the  working  relationship  between  the  parties.    Such  a          determination  involves consideration  of precisely  the  type of          issues  that  the parties  originally  agreed  to  refer  to  the          arbitrator under the arbitration clause of the Project Agreement.          We  do, nevertheless,  retain jurisdiction  so that  the district          court can review  the final determination  of the arbitrator,  if          requested to do so by one of the parties.                                         -19-                    On remand,  we expect  the arbitrator will  conduct the          appropriate  agency test  analysis as  described in  the relevant          caselaw.   See, e.g.,  Amber,  651 F.2d at 60-61;  Local No. 221,                     ___  ____   _____                       _____________          899 F.2d  at 1240;  North Am.  Van  Lines, 869  F.2d at  599-600;                              _____________________          Prang, 114 L.R.R.M. at 3617-19; see also  Restatement (Second) of          _____                           ________          Agency    220 (1957).   We leave it  to the arbitrator  to decide          what effect, if  any, the  past practices clause  of the  Project          Agreement  and  the  evidence  of  past  practice  regarding  the          treatment  of owner-operators  has  on his  determination of  the          owner-operators' status  under    302.   Although  we upheld  the          arbitrator's   interpretation   of   the   contract   as  barring          consideration   of  past   practices  in   resolving  contractual          disputes,  we express no opinion on how the past practices clause          in  the contract and the  evidence of past  practices figure into          the various  factors enumerated  under the  agency  test used  to          ascertain a party's status under   302.                    Accordingly,  we reverse the  district court's judgment                    _______________________________________________________          vacating  the  arbitration award  and  remand  this case  to  the          _________________________________________________________________          district  court with  instructions  to  remand  the case  to  the          _________________________________________________________________          arbitrator for further proceedings consistent with this opinion.          _______________________________________________________________                                         -20-
