
USCA1 Opinion

	




                            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 & 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 & 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                                          I                                      BACKGROUND                                      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                                          II                                      DISCUSSION                                      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 & 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.          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.          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.          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 &  Commercial Workers                         ___  _____________________________________________          Int'l Union v. Stop & 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                                         III                                      CONCLUSION                                      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
