
USCA1 Opinion

	




                            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 & Whatley were on brief for appellant.        ____________________            Luis D. Ortiz Abreu with whom Frances  R. Colon Rivera and Goldman            ___________________           ________________________     _______        Antonetti & 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 & 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 & Helpers, Local 89 v. Riss & Co., 372            __________________________________________    __________            U.S. 517, 519 (1963); United Steelworkers v. Enterprise Wheel                                  ___________________    ________________            &  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 & 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  & Space  Co.,  61 LA  90 (1972)  (employer            _______________________________            farmed  out work  to non-union  employees); Sears,  Roebuck &                                                        _________________            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-
