UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
December 1, 1971
ROSEMARY C. MOGGE ET AL., PLAINTIFFS-APPELLEES
DISTRICT 8, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, DEFENDANT-APPELLANT
Hastings, Senior Circuit Judge, Fairchild and Stevens, Circuit Judges.
HASTINGS, C. J.:
This action was commenced October 15, 1965, pursuant to Section 301(a) of the Labor-Management Relations Act of 1947*fn1 by Mrs. Mogge and her union, Local 28,*fn2 to recover damages for her discharge by another union, her employer.*fn3 These proceedings were stayed by the district court on April 21, 1967, pending arbitration. We affirmed the stay order in Mogge v. District No. 8, Int'l Ass'n of Machinists, AFL-CIO, 7 Cir., 387 F.2d 880, cert. denied, 391 U.S. 936, 88 S. Ct. 1849, 20 L. Ed. 2d 855 (1968).
On April 1, 1970, the arbitrator rendered his opinion and award in favor of Mogge and Local 28. District No. 8 refused to offer Mogge reinstatement or back pay as awarded. Accordingly, plaintiffs moved to reinstate the cause below and for enforcement of the award by the district court. On September 28, 1970, the district court reinstated the cause, confirmed the arbitration award, and entered judgment thereon. District No. 8 appealed. We affirm.
Mogge had been employed by District No. 8 since August, 1950 and prior to her discharge was the administrative secretary in charge of three other secretaries for District No. 8. Upon her return from maternity leave in August, 1963, Mogge began working on a three day a week basis. In February, 1965, Mogge's supervisor was replaced by a Mr. Glover. He instituted certain changes in office procedures. On April 5, 1965, the troubles involved in this protracted case arose. Glover instructed Mogge to report to work five days a week beginning the week of April 12. She was also to be relieved of certain administrative duties. Mogge protested, claiming she had a right under the collective bargaining agreement to work only three days a week.*fn4
At this juncture, Mogge reported the impasse to Sarah Keenan, the business representative for Local 28. After an April 12 conference attended by Mogge, Keenan, Glover and George Gray from District No. 8, Glover advised Keenan that Mogge's grievance was denied on the ground that there had been no violation of the collective bargaining agreement. On April 13 (a non-work day on her previous three day schedule) Mogge failed to report for work. She was immediately discharged.
The arbitrator found that District No. 8 had a right under the contract to require Mogge to work five days a week at a higher salary without negotiating with the union. However, he found that her discharge was without "just and sufficient cause", since she was justified in believing she was being demoted without reason, Glover having relieved her of certain responsibilities. Also, District No. 8 had refused to give her a reasonable time to find a baby sitter for the additional work days. No specific remedy was provided for in the contract. The arbitrator awarded reinstatement and back pay for 100 weeks at $145 per week. He characterized the monetary award as "in the nature of liquidated damages" since it was difficult to determine Mogge's actual damages over the 260 week period from the time of her discharge to the date of his award.
The question presented for review is whether the arbitrator's decision and award exceeded his contractual authority.
Due to the nature of the parties, District No. 8, a union and employer in this case, is faced with the unique opportunity to argue management's position. Accordingly, District No. 8 contends that the arbitrator exceeded his contractual authority by ordering reinstatement and back pay at a salary and position which it claims no longer existed. It argues that the contract had expired at the time of the award and had not been renewed. This factor is said to distinguish the present case from United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960). There the Supreme Court upheld an arbitrator's award for reinstatement after the expiration of a contract, but which had been renewed.
The only evidence which District No. 8 has presented concerning the expiration of the contract was offered for the first time in the district court when it answered plaintiff's motion for reinstatement of the case and enforcement of the award. Such evidence was a document entitled "Affidavit of Russell R. Oddo", along with certain exhibits which purported to show that the collective bargaining agreement between the parties had expired on December 31, 1966. These matters were never presented to the arbitrator, nor was there any showing that they were unavailable at that time or any reason given for their not being presented.
Since the burden was on District No. 8 to prove to the arbitrator that the contract had expired so that he could take this into consideration in fashioning a remedy, it may not now complain that the award is unjustified. On the state of the record presented to the arbitrator, he was fully justified in awarding reinstatement and back pay after the alleged expiration of the contract.*fn5
Having failed without cause to bring these extraneous matters to the arbitrator's attention, District No. 8 may not supplement the record at this late date. The national labor policy of encouraging private arbitration of labor disputes, because of its potential for expeditious disposition of these matters without resort to the courts, has been thwarted in this protracted case. To allow District No. 8, after arbitration, to have the court supplement the record with information that was available at the time of arbitration would further undermine the very purpose of private arbitration. We have concluded that these matters were never properly preserved for appeal.
Even assuming that the contract had expired, we do not feel that the arbitrator exceeded his contractual authority. The threshold question for us here is the scope of our review. The Supreme Court in Enterprise Wheel, supra, 363 U.S. at 599, announced: "It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." "[The arbitrator] may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement." Supra, at 597. We have held this standard to mean that a reviewing court should not disturb the award so long as the interpretation was not arbitrary. Local 7-644, Oil, Chemical and Atomic Workers Int'l Union, AFL-CIO v. Mobil Oil Co., 7 Cir., 350 F.2d 708 (1965), cert. denied, 382 U.S. 986, 86 S. Ct. 563, 15 L. Ed. 2d 474 (1966). Hence, we recognize that our review is severely circumscribed.
The dispute in this case arose during the term of a valid agreement which provided for arbitration but left it to the arbitrator to fashion an appropriate remedy.*fn6 Unlike matters before the Labor Board, the parties to an arbitration proceeding have privately agreed to that procedure to settle their disputes. The contract between Local 28 and District No. 8 did not provide for a specific remedy in the case of a wrongful discharge, nor did it contain any restriction on the arbitrator.
Here the arbitrator found that Mogge was discharged without "just and sufficient cause".*fn7 He based his decision on the fact that Mogge had been a loyal employee for nearly fifteen years and he further found that the actions of Glover in instituting changes in her duties reasonably led her to believe that she was being unilaterally demoted in violation of the collective bargaining agreement. Other important factors were that District No. 8 refused to give her a reasonable time in which to find a baby sitter for the additional work days, as above stated, and that Mogge never expressly refused to work the additional days. The arbitrator felt that with fifteen years of unimpeachable service Mogge deserved greater consideration than was shown her. We conclude that this decision was not arbitrary or capricious.
The remaining question concerns the propriety of the arbitrator's remedy, that is his ordering reinstatement with 100 weeks back pay. District No. 8 calls this award of back pay speculative because the arbitrator labeled it as "in the nature of liquidated damages". The arbitrator so labeled this award, as hereinbefore pointed out, because of the difficulty in determining actual unmitigated damages suffered by Mogge. This is nothing more than a disagreement with the arbitrator's considered judgment. The Supreme Court has given the duty of fashioning a just remedy to the privately selected arbitrator. Enterprise Wheel, supra, at 597.
The reported decisions make it abundantly clear that where the contract is not explicit concerning the proper remedy, the arbitrator is given wide latitude in fashioning an appropriate remedy. Enterprise Wheel, supra ; Int'l Ass'n of Machinists, District No. 8 v. Campbell Soup Co., 7 Cir., 406 F.2d 1223, cert. denied, 396 U.S. 820, 90 S. Ct. 57, 24 L. Ed. 2d 70 (1969); and Lodge No. 12, Int'l Ass'n of Machinists v. Cameron Ironworks, 5 Cir., 292 F.2d 112, cert. denied, 368 U.S. 926, 82 S. Ct. 361, 7 L. Ed. 2d 190 (1961). "When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations." Enterprise Wheel, supra, at 597.
Accordingly, we hold that the arbitrator's decision and award was not arbitrary and capricious but was wholly justified. On the authority of Enterprise Wheel, supra; Local 7-644; Campbell Soup, supra, together with San Francisco-Oakland Newspaper Guild v. Tribune Publishing Co., 9 Cir., 407 F.2d 1327 (1969); and Ludwig Honold Mfg. Co. v. Fletcher, 3 Cir., 405 F.2d 1123 (1969), we affirm.