

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                         

No. 96-2211

              EL MUNDO BROADCASTING CORPORATION,

                     Plaintiff, Appellee,

                              v.

         UNITED STEELWORKERS OF AMERICA, AFL-CIO CLC,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen C. Cerezo, U.S. District Judge]                                                                

                                         

                            Before

                    Boudin, Circuit Judge,                                                     

                Aldrich, Senior Circuit Judge,                                                         

                  and Lynch, Circuit Judge.                                                      

                                         

David R. Jury,  Assistant General Counsel, United Steelworkers  of                         
America, with whom Hilary E.  Ball-Walker and Cooper, Mitch, Crawford,                                                                              
Kuykendall &amp; Whatley were on brief for appellant.                            
Luis D. Ortiz Abreu with whom Frances  R. Colon Rivera and Goldman                                                                              
Antonetti &amp; Cordova were on brief for appellee.                           

                                         

                         June 2, 1997
                                         

          ALDRICH,   Senior  Circuit   Judge.     The  United                                                        

Steelworkers  of America, AFL-CIO  CLC (the  "Union") appeals

from an order of the district court granting summary judgment

to appellee El  Mundo Broadcasting Corporation  ("El Mundo"),

vacating an arbitration award in favor of the Union.  It also

appeals the  court's denial of  its cross motion  for summary

judgment to enforce the award.  We affirm.

                        I.  Background                                                  

          This  cases  arises  from  the  Union's attempt  to

proceed on a grievance  covered under a collective bargaining

agreement (the "CBA") between  the Union and El Mundo  and in

effect  from  September  1991  through  September  16,  1994.

Section XLV  of the CBA describes the  grievance procedure as

follows:

          Sec.  1 -  The contracting  parties shall
          follow the following procedure  to settle
          on  complaints,  disputes  or  grievances
          related  to  the  construction   of  this
          bargaining agreement  which arise between
          both:

          First  Step:    The complaining  employee
          shall  take his/her  case directly  to or
          through  the  shop  steward   in  his/her
          department   to    grievant's   immediate
          supervisor  within  three (3)  days after
          the occurrence of the act or action which
          gave rise to the complaint or claim.  The
          supervisor shall have up to  two (2) days
          to rule on the case, and must immediately
          notify the shop steward, or the grievant,
          in writing, of his/her decision.

          Second  Step:   If  the  solution at  the
          First  Step  is  unsatisfactory   to  the
          grievant,  he/she,  on  his/her   own  or

                             -2-

          through  the  shop steward,  within three
          (3)  days   of  being  notified   of  the
          decision at the First Step, may bring the
          case to the head  of the department where
          the employee works, who shall have up  to
          two  (2)  days  to  rule  on  the  matter
          submitted, and must notify in writing the
          grievant  or  shop  steward   of  his/her
          decision,  within  the  period  specified
          herein.

          Third  Step:   If  there is  no  solution
          satisfactory to the parties at the Second
          Step, the  grievant or the  shop steward,
          may submit the case in  writing, no later
          than three (3) days after being given the
          decision  in  the  Second  Step,  to  the
          Grievance  Committee   which  is  created
          hereinbelow . . . .

               b)  The  Grievance  Committee  shall
               hear  and  see  the testimonial  and
               documentary  evidence  submitted  by
               the  parties  and  shall   make  its
               decision,  based  on   all  of   the
               evidence within ten  (10) days  from
               the  date  on  which  the   case  is
               submitted to it . . . .

          Sec. 3 - Arbitration:   No later than ten
          (10) days  from  the date  on  which  the
          decision  is  issued  by   the  Grievance
          Committee,  either  of  the  parties  may
          bring its case before an arbitrator . . .
          the parties shall have the opportunity to
          present  their case once  more before the
          arbitrator, who in his/her  decision must
          adhere  to the  terms of  this Bargaining
          Agreement  and  to  the submission  being
          submitted to him . . . .

          In  November  1992,  a  full-time  editor  position

became  available.   El Mundo  did not  post the  position as

required  under  the CBA.   On  December  9, 1992,  the Union

received a "personnel  action" advising it that El  Mundo had

given  the  editor position  to  one  Sandra Lopez  effective

                             -3-

November  23,   1992.    On  December   16,  Juan  Villalongo

("Villalongo"),  President of  Local 9314,  sent a  letter to

Jose  Mendoza  ("Mendoza"),  El  Mundo's  personnel  manager,

alleging that El  Mundo had  violated the CBA  by failing  to

post the editor position and  to consider two other employees

with  greater seniority  than  Lopez.   On  January 5,  1993,

Mendoza   replied  to   Villalongo,   denying   the   Union's

allegations  and  reminding him  of  a  meeting the  previous

November  where  Villalongo  had  not  objected when  Mendoza

suggested  eliminating the  posting  process and  giving  the

editor  position to  Lopez,  in effect  agreeing through  his

silence.    Villalongo  did  not respond.    Nothing  further

happened  until March 8, 1993  when the Union  sent Mendoza a

"Grievance  Report."    El  Mundo's  response  was  that  the

grievance was not arbitrable because the Union had  failed to

comply  with  the procedures  and  time limits  for  filing a

grievance  under  the CBA.   On  March  19, 1993,  not having

complied with the Second Step, the Union filed a petition for

the  designation   of  an  arbitrator  with   the  Bureau  of

Conciliation and Arbitration.

          Boiled  down, we  note  five presently  significant

matters.    First,  Section  1 provides,  "[t]he  contracting

parties   shall   follow   the  following   procedure. . . ."                                    

(Emphasis ours.)   Second, all time  requirements are notably

firm and short.   Third, the complaining employee "shall take                                                                         

                             -4-

his/her case"  to the employer's attention  "within three (3)                                                                         

days  after the occurrence."  Fourth, within three days after                                      

an employer decision the dissatisfied party may submit to the

Grievance Committee.  Fifth,  the only provision for bringing

the "case before an  arbitrator" is (Sec. 3), "no  later than

ten (10) days from  the date on which the decision  is issued

by the Grievance Committee."

          Item third was done too late, unless this grievance

was a new grievance, occurring every day.  The fourth was not

done,  ever.   The  fifth did  not  occur unless  seeking  an

arbitrator before a Grievance Committee decision qualifies as                             

"no  later than ten days from  the date on which the decision

is  issued."   This  was waived,  however,  on the  issue  of

procedural arbitrability, by El Mundo's  specific submission,

leaving procedure, to the degree open under the agreement, to

the arbitrator.  John  Wiley &amp; Sons, Inc. v.  Livingston, 376                                                                    

U.S. 543, 557-58 (1964).

                     II.  The Arbitration                                                     

          A.  Introduction                                      

          The parties were unable to agree on the question to

be submitted.  Accordingly, each provided the arbitrator with

its  own version  of  the  question.   The  Union's  petition

described the issue to be arbitrated as:

               The  Company['s]  grant[ing of]  the
          job vacancy of Editor, without  its being
          posted   for   the  information   of  the
          interested employees, to an employee with

                             -5-

          less  seniority,  there  being  personnel
          with more  seniority and equally  able to
          perform it, among them the injured party.

The petition repeated El Mundo's response, which was, simply,

that the case was not arbitrable.

          The arbitrator, purporting to rely upon local rules

when the matter to  be decided had not been agreed  on, said,

in his award, that the question was:

               [W]hether    the     grievance    is
          arbitrable  or  not  in   its  procedural
          aspect.    Should  he/she decide  in  the
          negative    the   grievance    shall   be
          dismissed.  Should he/she rule that it is
          arbitrable,   he/she   shall  issue   the
          remedy.

          Pausing here, there was a basic question facing the

district court.

          B.  Finality                                  

          It   is   essential   for  the   district   court's

jurisdiction  that the arbitrator's  decision was  final, not

interlocutory.  See, e.g., Local 36, Sheetmetal Workers Int'l                                                                         

v. Pevely  Sheetmetal Co.,  951 F.2d  947,  949-50 (8th  Cir.                                     

1992); Orion Pictures Corp. v. Writers Guild of Am. W., Inc.,                                                                        

946 F.2d  722, 724 (9th  Cir. 1991).   We start  by what  was

before him.

          The  arbitrator heard  testimony  from  Mendoza  on

behalf  of El  Mundo  and received  into  evidence copies  of

documents he provided.  Along with the correspondence between

Mendoza and Villalongo, El Mundo provided the arbitrator with

                             -6-

copies of two earlier arbitration awards arising from similar

belated  circumstances and finding in favor of El Mundo based

on  the Union's  failure to  proceed timely  with grievances.

The Union  provided no  testimony and no  documentation, and,

apparently,  only  half-heartedly  attempted  to  justify its

failure to adhere to the CBA time limits.

          The arbitrator's  view of the issue,  ante, we read                                                                

to be, (1) the arbitrator  will determine whether, under  the

agreement, the  grievance was arbitrable, viz.,  timely.  (2)

If  not arbitrable,  he would  order it dismissed.   (3)   If

arbitrable,  he shall order "the  remedy."  As  to this last,

with  neither party  presenting  evidence on  the merits,  we

consider  the only  remedy open  was an  order to  follow the

grievance procedure.

          The award was as follows:

               [W]e  find  that  the  grievance  is
          arbitrable  in   its  procedural  aspect,
          since it is of a continuous nature.

               Discussion   of  the   grievance  is
          ordered   at  the   third  step   of  the
          procedure  for  Grievances.   We consider
          that since  this matter has  already been
          discussed with the Personnel  Manager, it
          would [sic] a futile exercise to go  back
          to the first two steps of the procedure.

               If  the  grievance has  to  be ruled
          upon  on its  merits by  this arbitrator,
          the claim,  if it  is in order,  shall be
          retroactive to March 8, 1993, the date on
          which  the  Union   filed  the   document
          "Grievance Report."

                             -7-

          In  finding  jurisdiction  without discussion,  the

district court assumed this to  be a final order.   Even more

to the  point, the Union,  representing the grievant,  in its

pleading specifically so stated:

               2.   The subject matter at issue has
          been  arbitrated, and a final award which
          is binding between the parties, under the
          terms  and conditions  of the  CBA and/or
          applicable law, has been issued.

The Union is bound by its pleading.1

                        III.  Analysis                                                  

          A. Is the Award Reviewable?                                                 

          In  general,  even  final  and  binding arbitration

awards  are not  subject  to judicial  review.   See  General                                                                         

Drivers,  Warehousemen &amp; Helpers, Local 89 v. Riss &amp; Co., 372                                                                    

U.S. 517, 519 (1963); United Steelworkers v. Enterprise Wheel                                                                         

&amp;  Car  Corp.,  363   U.S.  593,  596  (1960).     In  United                                                                         

Paperworkers Int'l  Union, AFL-CIO  v. Misco, Inc.,  484 U.S.                                                              

29, 38 (1987), the  Court said, "[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

                                                    

1.  While  unnecessary  under  the  circumstances,   we  deal
briefly  with  the  argument   that  the  arbitrator's  third
paragraph was a  retention of jurisdiction.   Third Step, the
processing by the Grievance Committee, is a proceeding all by
itself.     A   disappointed  party  may   subsequently  seek
arbitration,  but it would be a choice, a new proceeding, not
preordained.  We regard the  arbitrator's statement as to the
date the grievance should  begin to be merely a  spelling out
of  the interpretation on which he based his finding that the
claim  was  a day  to day  claim arising  daily.   It  had no
independent consequences.

                             -8-

convinced  he committed  serious  error does  not suffice  to

overturn  his decision."  At  the same time  the Court stated

that "the arbitrator's award  settling a dispute with respect

to  the interpretation  or application  of a  labor agreement

must draw  its essence  from the  contract and  cannot simply

reflect the arbitrator's own notions of industrial justice."2

If  the arbitrator fails to  meet this standard, "courts have

no  choice   but  to   refuse  enforcement  of   the  award."

Enterprise Wheel,  363  U.S. at  597.   We feel  that in  the                            

present  case  this admittedly,  extremely  narrow exception,

exists  because  the arbitrator  enlarged  the agreement  and

exceeded his authority under the CBA.

          B.  Was There a Continuing Violation?                                                           

          To  comply  with  grievant's  "obligation  to  file

promptly  or  lose  his  claim,"  Sabree  v.  United Bhd.  of                                                                         

Carpenters &amp; Joiners  Local No.  33, 921 F.2d  396, 402  (1st                                               

Cir.  1990), the  arbitrator found  that the  claim "is  of a

continuous nature;"  "arises and is renewed from day to day."

For  this he  cited arbitration  decisions where  an employer

                                                    

2.  We have found there  may be critical distinctions between
Misco and claims which may be made in other cases.  In Misco,                                                                        
"[t]he specific  issue was  whether, under the  contract, the
arbitrator  could  limit  the  evidence  before  him  to  the
evidence that had  been before  the employer at  the time  of
discharge . . . a  matter on which the  contract was silent."
S.D. Warren Co. v. United Paperworkers' Int'l Union, AFL-CIO,                                                                         
Local  1069, 846 F.2d 827, 828 (1st Cir. 1988) (setting aside                       
arbitrator's determination under Misco as unsupported by  the                                                  
essence of the agreement.)

                             -9-

changed  a  rate  of pay  or  work  diminishing or  depriving

employees of  daily pay.3  The  daily failure to  pay was the

direct "act or  action."  The act or occurrence  here was the

naming  of a person to the editorship.   Pay was not the act,

but was merely one of its consequences.

          This is of logical  and practical significance.  In

the ordinary case of loss of pay, or of work,  the matter can

be  remedied  in  due course,  as  of  the  date  of  a  late

grievance, if  it  still continued,  without prejudicing  the

employer.  A  belated order  that a grievant  should oust  an

incumbent  of a special office requiring posting and have her

position, disturbs  settled order.   If recognized  simply to

the extent of  giving the grievant  the increased salary,  it

will be paying her for work she is not doing, and doubles the

employer's costs.

          The   appointment  of  an   editor  is  a  specific

occurrence.    Clearly an  employer has  a  right to  have an

appointment  settled  at  the  outset, and  require  that  an

employee claiming loss  of it complain  promptly, and not  be

                                                    

3.  Quaker   State  Refining   Corp.,  78   LA  1328   (1982)                                                
(continuing  violation  from  loss  of  pay  through  union's
failure  to object  to erroneous  designation of  seniority);
Lockheed Missiles  &amp; Space  Co.,  61 LA  90 (1972)  (employer                                           
farmed  out work  to non-union  employees); Sears,  Roebuck &amp;                                                                         
Co.,  39 LA 567 (1962)  (reduction in commission  and loss of               
pay raise).  The arbitrator did not mention,  if only as shop
procedure, two  similar cases, but where  El Mundo prevailed.
See In re Judith Borunet, Case No. A-1320 (1989); In re Ramon                                                                         
Viscarrondo and Luis Enrique Marrero, Case No. A-2250 (1983).                                                

                             -10-

allowed   to  wait   until  such   time  as   serves  his/her

convenience.  The arbitrator's purported logic  and treatment

of plain language has rejected this right.  By misstating the

basic nature  of the occurrence the arbitrator  read the time

provisions  out of  the  contract,  ignoring  its  "essence."

Paperworkers, ante.   We affirm  the rulings of  the district                              

court.

                             -11-
