                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           
No. 93-1473

                     EDWARD LAROCQUE, ET AL.,

                     Plaintiffs, Appellants,

                                v.

                      R.W.F., INC., ET AL.,

                      Defendants, Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

      [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                                          

                                           

                              Before

                        Cyr, Circuit Judge,
                                          

                  Rosenn,* Senior Circuit Judge,
                                               

                    and Stahl, Circuit Judge.
                                            

                                           

   Thomas J.  Young with whom  Young &amp; LaPuzza, Thomas  J. McAndrew,
                                                                   
and Patricia E. Andrews were on brief for appellants.
                     
   Marc B. Gursky for appellee Teamsters Local 251.
                 
   James M.  Green with whom  Powers, Kinder &amp; Keeney,  Inc. were on
                                                            
brief for appellees R.W.F., Inc. and Wetterau, Inc.

                                           
                         November 2, 1993
                                           

                

*Of the Third Circuit, sitting by designation.

          CYR, Circuit  Judge.  Appellants  challenge a  district
          CYR, Circuit  Judge.  
                             

court judgment directing  the enforcement of a  labor arbitration

award upholding a proposed "dovetailing" of the separate seniori-

ty  lists maintained by the defendant-appellee, R.W.F, Inc. prior

to the consolidation  of its two divisions.   Because we conclude

that  the arbitral  award was  within the  scope of  the parties'

arbitral  submission and drew  its essence from  their collective

bargaining agreements, we affirm the district court judgment.

                                I

                            BACKGROUND
                                      

          Appellants were  employed at  Laurans Standard  Grocery

Company (Laurans), in Cranston,  Rhode Island, an  unincorporated

division  of defendant-appellee  R.W.F., Inc.  (RWF), which  also

operated a  second division,  Roger Williams  Foods, Inc.  (Roger

Williams), a separate corporation, in  Cumberland, Rhode Island.1

Each division  had  a separate  collective  bargaining  agreement

(CBA) with Teamsters Local 251.

          After  acquiring RWF  in 1988, appellee  Wetterau, Inc.

announced  plans to relocate  the Roger Williams  division opera-

tions outside  of Rhode Island,  and transfer the  Roger Williams

workers to the  Laurans operation.   RWF  proposed to  "dovetail"

                    

     1RWF was founded as a grocery distributor in 1945.  In 1973,
it branched out and created Laurans, which shared warehouse space
with Roger Williams until 1987 when the Cranston facility opened.

                                2

(i.e.,  integrate) the  Roger Williams  seniority  list into  the
     

Laurans  seniority list.    The alternative  would  have been  to

"endtail" the Roger Williams workers;  that is, treat them as new

employees and eliminate their Roger Williams seniority.2

          After the  workers at the Laurans  plant [collectively:

LaRocque] filed a grievance protesting  the "dovetailing" propos-

al, the matter  was submitted to arbitration.   The basic dispute

that drove the arbitration was whether Laurans and Roger Williams

were separate "employers" or whether RWF should be considered the

"employer" of  the workers at  both divisions.  Under  both CBAs,

the term "employer"  was defined as the  division; "seniority" as

"continuous service  with the  Employer";  and RWF  was not  men-

tioned.  The  arbitrator found, nonetheless, that RWF  was the de
                                                                 

facto employer of the workers  at both divisions, based on, inter
                                                                 

alia, the history of RWF's development, the shared administrative
    

and executive operations of the  two divisions, and the fact that

"Laurans"  was merely an  unregistered tradename, not  a separate

legal entity.   LaRocque sought judicial  review of the  arbitral

award in federal  district court pursuant to 29 U.S.C.   185, and

the district court ultimately granted  summary judgment directing

                    

     2This  case involves  "competitive-status" seniority  lists,
which  determine   the order in  which workers  are laid  off and
rehired.   Thus,  "endtailing" would  have left  the  most senior
Roger Williams  worker with less  seniority than the  most junior
Laurans worker. 

                                3

enforcement.   See  LaRocque v.  R.W.F., Inc.,  793 F.  Supp. 386
                                             

(D.R.I. 1992).

                                II

                            DISCUSSION
                                      

          The  highly  deferential  standard  governing  judicial

review of  labor arbitration  awards  is described  in El  Dorado
                                                                 

Technical Servs., Inc. v. Union 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 col-
          lective bargaining agreement  if it can find,
          within the four corners of the agreement, any
                                                       
          plausible basis for that interpretation.
                                                 

(emphasis added; citations omitted).  See generally United Paper-
                                                                 

workers Int'l Union  v. Misco, Inc., 484  U.S. 29, 38 (1987).   A
                                   

judicial challenge  to arbitral authority requires  the reviewing

court to  consider both the  CBA and the arbitral  submission, El
                                                                 

Dorado,  961 F.2d  at 320;  Challenger Caribbean  Corp. v.  Union
                                                                 

General de  Trabajadores, 903 F.2d  857, 860-61  (1st Cir.  1990)
                        

(citing  cases), bearing  foremost in  mind  the admonition  that

"courts  [do not have] the final  say on the merits of [arbitral]

awards," United Steelworkers of America v. Enterprise Wheel &amp; Car
                                                                 

Corp., 363 U.S. 593, 596 (1960).   "Of course, this does not mean
     

that an arbitrator has 'carte blanche approval' for any and every

arbitral decision . . . ."  Dorado  Beach Hotel Corp. v. Union de
                                                                 

                                4

Trabajadores  de la Industria Gastronomica Local 610, 959 F.2d 2,
                                                    

4  (1st Cir.  1992) (citations  omitted).   An enforceable  award

"must  draw its  essence  from  the  contract and  cannot  simply

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

Misco, Inc., 484  U.S. at 38; see also  Challenger Caribbean, 903
                                                            

F.2d at 861. 

1.  The Scope of the Arbitral Submission.
                                        

          Like  many  a  party aggrieved  by  an  arbitral award,

LaRocque comes  poorly clad for  the challenge,  with only  three

appellate claims  meriting  brief discussion.    First,  LaRocque

contends  that the award  exceeded the scope  of the arbitrator's

authority, a  claim that flies in the  face of the joint arbitral

submission:

          Did RWF, Inc. violate  the [CBAs] between the
          parties by proposing to dovetail the seniori-
          ty lists  of its employees under  the Laurans
          Standard  Agreement and  its employees  under
          the Roger Williams  Agreement for competitive
          status  seniority   upon  consolidating   its
          regional  operations?  If  so, what shall the
          remedy be?

          Thus, the  parties mutually agreed that  the arbitrator

should reconcile  the language in  the separate CBAs,  neither of

which afforded  definitive guidance in the context  of an unfore-

seen consolidation of the two  divisions, and determine an appro-
                                                                 

priate remedy.   See Challenger  Caribbean, 903  F.2d at  860-61;
                                          

Georgia-Pacific  Corp.  v.  Local 27,  United  Paperworkers Int'l
                                                                 

Union, 864 F.2d 940, 944 (1st  Cir. 1988).  Moreover, "[a]n arbi-
     

                                5

trator's view of the scope of the issue . . . is entitled  to the

same  . . . deference . . . normally accorded to the arbitrator's

interpretation of  the collective  bargaining agreement  itself."

El  Dorado, 961 F.2d at 321.   Furthermore, once having agreed to
          

the arbitral submission, it was  too late for Laurans' workers to

say  that the  arbitrator acted  ultra vires  merely  because the
                                            

remedy was not what they had hoped.

2.  The Arbitrator's Factual Findings.
                                     

          LaRocque  next insists  that  the arbitrator's  finding

that RWF was the  de facto employer of the workers  at both loca-
                          

tions is  without  evidentiary support.    This tactic,  too,  is

unavailing.  

          Few aggrieved parties surmount the deferential standard

of  judicial review accorded factual findings within the scope of

an arbitral submission:

          [T]he standard of review is  unrelenting:  as
          a general proposition, an arbitrator's factu-
          al  findings are not  open to  judicial chal-
          lenge.  Even if  the arbitrator was seriously
          mistaken about  some of the  facts, his award
          must stand.

El  Dorado,  961 F.2d  at 320  (citing cases).   As  the evidence
          

presented  to  the  arbitrator  plainly  demonstrates,  there  is

nothing approaching "serious error" in this case.  First, Laurans

is not  a separate  legal entity.   Second, Laurans  Standard, so

designated by RWF in  1973, operated out of the  same facility as

Roger Williams until 1987.  Third, the two divisions had the same

                                6

president  and  the  same  accounting  and  administrative staff.

Finally,  the evidence  demonstrated that substantially  the same

working conditions and pay rates prevailed within both divisions,

and that virtually  all work was interchangeable  between workers

in the two divisions.   We are not permitted to  second-guess the

factual findings  of a  labor arbitrator  in the  face of  such a

record.  See Air Line Pilots Ass'n Int'l v. Aviation  Ass'n Inc.,
                                                                

955 F.2d 90, 93 (1st Cir. 1992).  

3.   The "No-modification" Clauses.
                                  

          Finally, LaRocque  points  to purported  curbs  on  the

power of the arbitrator, as set forth in the CBAs:  "the arbitra-

tor shall not have the power to add to or subtract from or modify

any provisions of  the agreement."  These  standard "no-modifica-

tion" clauses, see  Local 1445, United Food &amp;  Commercial Workers
                                                                 

Int'l Union v. Stop &amp; Shop Cos., 776 F.2d 19, 22 (1st Cir. 1985),
                               

reinforce the  admonition in  Misco, Inc., 484  U.S. at  38, that
                                         

legitimate  arbitral awards "draw  [their] essence from  the con-

tract." 

          At the mutual invitation of the parties, the arbitrator

was  empowered to decide  whether the proposal  to "dovetail" the

two seniority  lists would violate the CBAs, in the circumstances
                                                                 

posed by the consolidation.  See supra at p.5.  After determining
                                      

that the RWF proposal would not violate the CBAs, the arbitrator,

again at  the explicit  invitation of  the parties,  undertook to

                                7

determine  the appropriate remedy.  Since it is indisputable that

the  language in  neither  CBA  precluded  "dovetailing"  in  the

circumstances of  a consolidation,  the arbitral award  directing

"dovetailing" clearly  derived from a  permissible interpretation

of the  agreement  in  the  changed circumstances,  and  did  not

"simply reflect the  arbitrator's own notions of  industrial jus-

tice," id.  As the Court carefully noted in Misco, Inc., "it must
                                                       

be  remembered that grievance and arbitration procedures are part

and parcel of  the ongoing process of collective  bargaining.  It

is  through these processes  that the supplementary  rules of the
                                                   

plant are established."  484 U.S. at 38 (emphasis  added).  Thus,

viewed against  the backdrop of  the CBAs and the  joint arbitral

submission,  as well  as the  surrounding  circumstances, see  El
                                                                 

Dorado, 961 F.2d at 320, the challenged award was well within the
      

consensual delegation  of arbitral  authority, the  "no-modifica-

tion" clause notwithstanding.  See High Concrete Structures, Inc.
                                                                 

v.  United Elec.,  Radio and  Mach. Workers  Local 166,  879 F.2d
                                                      

1215, 1219  (3d Cir.  1989) (holding:   "no-modification"  clause

does  not "prohibit  the parties  from  agreeing to  a submission

which is broader.")

                               III

                            CONCLUSION
                                      

                                8

          The joint arbitral  submission empowered the arbitrator

to harmonize the  parallel contract provisions in  dispute and to

fashion a remedy  in light of the surrounding  circumstances.  As

the arbitral award  faithfully drew its essence  from the collec-

tive bargaining  agreements, it represents neither  an arrogation

of  arbitral power,  nor  an  impermissible  modification.    The

district court judgment must be affirmed.

          Affirmed.  
          Affirmed.
                  

                                9
