

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 97-1950

                COASTAL OIL OF NEW ENGLAND, INC.,

                      Plaintiff, Appellant,

                                v.

                       TEAMSTERS LOCAL A/W
             INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

                       Defendant, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Reginald C. Lindsay, U.S. District Judge]                                                                 

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Campbell, Senior Circuit Judge,                                                         

                    and Lynch, Circuit Judge.                                                      

                                           

     Alan  S. Miller, with  whom Stoneman, Chandler  &amp; Miller LLP                                                                           
was on brief for appellant.
     Christine L. Nickerson, with whom Matthew E. Dwyer and Dwyer                                                                           
&amp; Jenkins, P.C. were on brief for appellee.                         

                                           

                         January 23, 1998
                                           

          TORRUELLA, Chief  Judge.  Although this appeal presents                    TORRUELLA, Chief  Judge.                                           

a somewhat novel question, the answer is more mundane.

          Appellant employer  Coastal Oil  of New  England, Inc.,

filed  an  Application  to  Vacate an  arbitration  award  in the

Superior  Court of  the  Commonwealth  of  Massachusetts  on  the

grounds that the arbitrator had exceeded his authority.  Appellee

labor organization Teamsters Local Union No. 25 A/W International

Brotherhood of Teamsters removed the  matter to the United States

District Court for the District  of Massachusetts.  See 28 U.S.C.                                                                 

   1441,  1331; 29  U.S.C.    185(a).   Both parties  filed cross

motions for summary  judgment, whereupon the court  ruled against

appellant and denied vacation of the arbitration award.  Instead,

the district court granted appellee's  request that the award  be

enforced.   Final judgment was entered thereafter and this appeal

followed.

          Appellant   operates  three   separate  facilities   in

Massachusetts,  including one  in  Revere  and  one  in  Chelsea.

Although  they  are  all  represented for  collective  bargaining

purposes  by  appellee,  the  employees  in  each  of  the  three

facilities belong to separate bargaining units and are covered by

discrete collective bargaining agreements. 

          Joseph   Abruzzese,  a   yardman   within  the   Revere

bargaining unit,  was injured in a work-related accident in 1991,

forcing him to take a leave  of absence, during which he received

benefits  under  the  Massachusetts  Worker's  Compensation  Act.

Mass.  Gen. Laws  ch. 152,    1  et seq.   In  August 1995,  when                                                  

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Abruzzese  sought  to  return  to  work,  no  job  openings  were

available  in the  Revere  unit.    Nevertheless,  appellant  and

appellee  reached an agreement that Abruzzese would be reinstated

to  the next available position.  Subsequently, Abruzzese learned

that a  yardman position was  available in the Chelsea  unit, the

same job  that he  had previously  had in  the Revere  unit.   He

applied for  that slot  through his union,  appellee.   Appellant

refused the request,  contending that Abruzzese only  had a right

to  reinstatement  in the  Revere  unit.   After  appellant hired

someone else to the Chelsea  position, appellee filed a grievance

pursuant to the Revere contract.

          Eventually, the dispute was heard before an arbitrator.

After hearing  the evidence,  the arbitrator  concluded that  the

issue  to be  decided  was  "whether  the  Company  violated  the

[Revere] Agreement when it refused  to place Joseph Abruzzese . .

. in a position of yardman at the Company's Chelsea terminal  . .

.  ."   Thereafter, the  arbitrator concluded  that Article  XIV,

Section 10(a)  of the  Revere Agreement,  which incorporated  the

Massachusetts Worker's Compensation  Law, mandated the employment

of Abruzzese at the open position in Chelsea.  Appellant was thus

ordered to reinstate him to the  Chelsea position and to make him

whole as to back pay and lost benefits.

          Appellant's challenge  to the district  court's rulings

stems  from its  contention  that  the  arbitrator  exceeded  his

authority  under  the Revere  collective bargaining  agreement by

ordering the employment of a member of that unit into the Chelsea

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unit.   As a corollary to  that issue, appellant  claims that the

arbitrator   lacked   authority   to   interpret   the   Worker's

Compensation Act.

          Labor arbitration is the product of the private will of

voluntarily consenting parties.  Thus, the starting point, and in

a real sense the finishing one in  this, as in most challenges to

arbitration  awards, is the language of the collective bargaining

contract.   Such  language  establishes  the  parameters  of  the

arbitrator's authority.

          We commence  our quest  for the  answers to  the issues

raised by  this appeal with  a reading  of Article  XVIII of  the

Revere Agreement entitled  "Grievance Procedure," which  provides

in Section 2, in effect, that in exchange for labor peace "during

the  life   of  this   Agreement[,]  .  .   .  any   question  of

interpretation,  enforcement,  adjustment  or  grievance  .  .  .

between the employer and the Union and his employees which cannot

be  adjusted[,]  .  . .  shall  be  referred  .  .  . to  .  .  .

arbitration[,] . . . [which] . . .  decision . . . shall be final

and binding upon both parties."

          We  next proceed to  the specific provision  upon which

the arbitrator relied  for his ruling, Article XIV, Section 10(a)

of the Revere contract.  It states that:                         

          The   Company   shall    either   carry   worker's
          compensation  or, in the event of  an injury to an
          employee,  shall provide  said  employee with  the
          same benefits  and payments and in the same manner
          as provided  by  the provisions  of  the  Worker's
          Compensation  Law  (Massachusetts  G.L.,   Chapter

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          152) and Amendments thereto,  up to and  including
          the date of the signing of this Agreement.

          We  thus come  to  Section  75A  of  the  Massachusetts

Worker's  Compensation   statute,  which  the   arbitrator  found

applicable  to the submitted grievance under the previously cited

contractual provision, and  which he interpreted to  require that

Abruzzese be  reinstated to the Chelsea  position notwithstanding

his previous employment outside that  unit.  Section 75A reads as

follows:

          Any person who  has lost a job  as a result  of an
          injury  compensable under  this  chapter shall  be
          given preference  in hiring  by  the employer  for
          whom he worked at  the time of compensable  injury
          over any  persons not  at the time  of application
          for  re-employment  employed   by  such  employer;
          provided,   however,  that   a  suitable   job  is
          available.    Actions  may  be  filed  under  this
          section with the superior  court department of the
          trial court  for the  county in which  the alleged
          violation  occurred.   An  employer found  to have
          violated this section shall be  exclusively liable
          to  pay to  the employee  lost wages,  shall grant
          the employee  a suitable job, and  shall reimburse
          such  reasonable  attorney  fees incurred  in  the
          protection of  rights granted  by this section  as
          shall be determined by the court.

          In the  event that  any right  set  forth in  this
          section   is  inconsistent   with  an   applicable
          collective   bargaining   agreement   or   chapter
          thirty- one,  the collective  bargaining agreement
          or said chapter thirty-one shall prevail.

          Although we have often stated  the following principle,

due to the number of groundless appeals that have come before  us

challenging   arbitration  awards,   it  bears   repeating  that:

"[j]udicial review of an arbitration award is among the narrowest

known  to the  law."   Maine  Cent.  R.R. Co.  v.  Brotherhood of                                                                           

Maintenance of Way Employees, 873  F.2d 425, 428 (1st Cir. 1989).                                      

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For courts  "do not sit to hear claims  of factual or legal error

by  an arbitrator[,]  as  an appellate  court  does in  reviewing

decisions  of lower courts."   United Paperworkers Int'l Union v.                                                                        

Misco, 484 U.S.  29, 38 (1987).  In fact, "[f]ederal court review               

of arbitral  decisions  is extremely  narrow and  extraordinarily

deferential."  Service Employees Int'l Union v. Local 1199, N.E.,                                                                          

70 F.3d 647, 651 (1st Cir. 1995).

          "[A] court should  uphold an award that  depends on the

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." El  Dorado Technical                                                                           

Servs., Inc. v. Uni n General de Trabajadores de Puerto Rico, 961                                                                      

F.2d 317,  319 (1st Cir. 1992).  That  a court would have decided

an issue differently is not  a basis for overruling an arbitrator

if the  arbitrator "even arguably  acted within the scope  of his

authority."  Misco, 484 U.S. at 38.                            

          Absent a claim  that the award is  against an explicit,

well-defined, and dominant  public policy, see Service  Employees                                                                           

Int'l Union, 70  F.3d at 652, the  scope of review is  limited to                     

claims  that  the  arbitrator's decision  is:  "(1)  unfounded in

reason and fact;  (2) based on reasoning so  palpably faulty that

no judge,  or group of  judges, ever could conceivably  have made

such a  ruling; or (3)  mistakenly based on a  crucial assumption

that  is concededly  a non-fact."    Local 1445  United Food  and                                                                           

Commercial Workers Int'l Union v. Stop &amp; Shop Cos., 776  F.2d 19,                                                            

21 (1st Cir. 1985).  And,  of course, "[a]n arbitrator's view  of

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the scope  of the  issue .  . .  is entitled  to the  same .  . .

deference  .   .  .   normally  accorded   to  the   arbitrator's

interpretation of  the collective  bargaining agreement  itself."

Larocque v.  R.W.F., Inc., 8 F.3d 95, 97  (1st Cir. 1993).  Based                                   

on  these well-established principles, the outcome of this appeal

is preordained.

          Although the scope of the reinstatement remedy provided

through an arbitral  award is usually limited  to the contractual

bargaining  unit  from  which the  grievance  arises,  a contrary

result  is not  unheard of  where the  parties have  bargained to

grant the arbitrator  such power.  See supra.  The parties to the                                                      

collective  bargaining  agreement,  the  same entities  presently

before us, voluntarily contracted to submit to  final and binding

arbitration  any question of interpretation of that agreement, or

any  grievance involving  employees.    It  cannot  be  seriously

contended  that  the  underlying controversy  submitted  to,  and

litigated  before, the  arbitrator  does  not  concern  both  the

interpretation  of the collective bargaining agreement as well as

a grievance  involving an employee.   How can the  arbitrator, in

determining  whether  appellant  lived  up  to  the   contractual

obligations  mandated  by Section  10(a)  of Article  XIV  of the

Revere Agreement, fail to address  whether the provisions of  the

Massachusetts Worker's  Compensation Law, incorporated  into that

agreement by Section 10(a), have been met?

          The response to this question as well as to appellant's

challenge   to  the  arbitrator's   authority  to  interpret  the

                               -7-

aforementioned Massachusetts statute is self-evident.  Obviously,

the  arbitrator  acted  properly  and  within  the  scope of  his

delegated authority.  We can perceive of no valid reason  why the

parties  could not also  agree to have  statutory rights enforced

before   an   arbitral    forum.      See,   e.g.,    Gilmer   v.                                                                      

Interstate/Johnson  Lane Corp., 500  U.S. 20, 35  (1991) (holding                                        

ADEA  claims to be arbitrable); Bercovitch v. Baldwin Sch., Inc.,                                                                          

1998 WL 5845,    F.3d     (1st Cir. 1998) (ADA claims subject  to

arbitration);  (Patterson v. Tenet Healthcare, Inc., 113 F.3d 832                                                             

(8th Cir. 1997)  (extending Gilmer to Title VII  claims); Mago v.                                                                        

Shearson Lehman Hutton,  Inc., 956 F.2d 932, 935  (9th Cir. 1992)                                       

(extending Gilmer to Title VII  claims); Utley v. Goldman Sachs &amp;                                                                           

Co., 883 F.2d 184, 186 (1st  Cir. 1989) (holding inter alia Title                                                                     

VII claims to be arbitrable); cf. Shearson/American Express, Inc.                                                                           

v. McMahon, 482 U.S. 220, 238 (1987) (holding Securities Exchange                    

Act and RICO claims to be arbitrable); Mitsubishi Motors Corp. v.                                                                        

Soler  Chrysler-Plymouth, Inc., 473 U.S. 614, 640 (1985) (holding                                        

Sherman Act claims to be arbitrable).

          A   cursory  reading  of  that  statute  leads  to  the

inevitable conclusion that  the arbitrator's ruling in  this case

was not  only clearly  within the  powers granted  to him  in the

collective bargaining agreement, it  is substantially the  remedy

that  the Massachusetts  Superior Court  would  likely have  felt

required to grant Joseph Abruzzese  given that the appellant is a

single, unitary employer, for workman's compensation purpose.  As

a result, its  trinary profile, for labor  relations purposes, is

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presently  irrelevant.   We note that  our views as  to the legal

soundness of the arbitrator's conclusions are largely gratuitous,

for as previously stated, even an erroneous interpretation of the

law by an  arbitrator is not subject  to judicial review  if that

authority has been delegated to the arbitrator, as it was in this

case.

          The  decision of the district court is AFFIRMED.  Costs                                                           AFFIRMED                                                                   

are granted to appellee.

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