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April 20, 1992

NATIONAL WRECKING COMPANY, Plaintiff/Counter-defendant,

The opinion of the court was delivered by: MILTON I. SHADUR

 National Wrecking Company ("National") has sued International Brotherhood of Teamsters, Local No. 731 ("Union") seeking to vacate an arbitration award (the "Award"), and Union has in turn counterclaimed for enforcement of the Award plus some related additional relief. National now moves under Fed. R. Civ. P. ("Rule") 56 for summary judgment on its claim, while Union moves for summary judgment on its counterclaim. *fn1" For the reasons stated in this memorandum opinion and order:

1. National's Rule 56 motion is denied, and its action to vacate the Award is dismissed.
2. Summary judgment is granted in Union's favor on its counterclaim to enforce the Award, but only as originally rendered.


 National and Union entered into a Collective Bargaining Agreement ("CBA") that required them to follow certain grievance and arbitration procedures (Ex. J-1, CBA §§ 6.1-6.12). National was also subject to United States Department of Transportation ("DOT") regulations requiring truck drivers in its employ to meet certain vision standards (49 C.F.R. § 391.41(b)(10)). Where the CBA and the DOT regulations intersect, this case begins.

 On March 8, 1990 National fired truck driver Joseph Barnett ("Barnett") based on the oral report of an ophthalmologist who said that Barnett's vision fell short of DOT requirements (Tr. 145-46; Ex. C-8). Barnett filed a grievance with Union the same day, challenging his dismissal (Ex. C-2, the "March 8 grievance"). On March 28 the Joint Area Committee designated to hear Barnett's grievance held a hearing, but it deadlocked. Barnett learned of that result the same day from Union's president James Lisner ("Lisner") (Tr. 148-49). Barnett was formally advised of the deadlock by a letter dated April 20 (Ex. C-1).

 Barnett then filed for arbitration. There is some dispute about whether he did so within the 30-day time frame set by CBA § 6.10. National says that it first received notice of the request for arbitration in an undated letter from Lisner that it claims to have received on or about June 13, well beyond the 30-day limit (Ex. C-3). Union counters with evidence that the request was timely filed (Tr. 184-87; Exs. U-6 to U-8; Max Becker Aff. § 3). As will be shown below, that factual dispute does not bear on the outcome of the case.

 Barnett underwent four eye exams in the eight months leading up to the arbitration hearing. Two of those exams, each apparently commissioned by National, indicated that Barnett's eyesight fell short of DOT requirements (Exs. C-5, C-8). Two other exams, each apparently conducted at Union's behest, indicated that Barnett's eyesight was adequate (Exs. U-2, U-4). Another exam conducted two years earlier had also found his eyesight adequate (Ex. C-6).

 Arbitrator Albert Epstein conducted a hearing on October 19 and 29, 1990, then issued his Award on January 30, 1991. In a 30-page opinion he reviewed the case thoroughly, noting the conflicting evidence on timeliness and on visual acuity. Arbitrator Epstein found that the March 8 grievance had been timely filed, citing the principle that an arbitrator should generally resolve disputes over timeliness in the grievant's favor (Award 26-27):

This principle is established upon the general basis that the merits of a grievance should be considered by an arbitrator whenever possible and that the Grievant should not be disenfranchised by virtue of a technical disqualification.

 Thus Arbitrator Epstein did not actually resolve the evidentiary conflict. Instead he took note of the conflict and drew upon a general rule to choose a winner on the timeliness issue.

 Next Arbitrator Epstein referred to the "barrage of conflicting diagnoses" on visual acuity, but he declined to choose among the diagnoses himself (id. 27-28). Instead he ordered that Barnett undergo yet another examination, this time by a neutral ophthalmologist to be selected by the parties within ten days. If the parties could not agree on a new ophthalmologist, Arbitrator Epstein would appoint one (id. 28). In either case the findings of the neutral ophthalmologist would bind the parties. If the doctor found Barnett's vision adequate he would win his job back, with restoration of seniority and pension rights but no back pay. If the doctor found that Barnett's vision fell short of DOT regulations, then the grievance would be resolved in National's favor (id. 30).

 National and Union could not agree on an ophthalmologist, so Arbitrator Epstein appointed Dr. Robert Levine. On March 18, 1991 Barnett visited Dr. Levine's office in downtown Chicago for the sixth and last exam relevant to this case. In a letter summarizing the results of that exam (National Ex. Mar. 30, 1991 Letter), Dr. Levine did not say outright whether Barnett's vision met DOT standards. Nor was any clear answer to that question evident on the face of the letter. Arbitrator Epstein responded by asking the doctor point-blank, in writing and over the phone, for an opinion on whether Barnett's visual acuity met DOT standards (National Exs. May 13, 1991 Letter (requesting an opinion) and July 9, 1991 Letter (reflecting phone conversations to the same effect)).

 Dr. Levine finally rendered an unequivocal written opinion to the effect that Barnett saw well enough to drive a truck under the federal regulations (National Ex. June 27, 1991 Letter). Arbitrator Epstein forwarded that opinion to the parties, adding that they were to "share [its cost] according to the terms of my award in the arbitration proceeding" (National Ex. July 9, 1991 Letter). Rather than grant Barnett reinstatement and back benefits, National filed its motion to vacate. Union responded with its motion for confirmation and enforcement.

 Rule 56 Principles

 Familiar Rule 56 doctrine imposes on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Hence this Court must draw all "reasonable inferences, not every conceivable inference" in the light most favorable to the nonmovant ( De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987)). Where cross-motions are involved (and what the parties present here are cross-motions in substance, though not in form), that principle demands a dual perspective that sometimes causes the denial of both motions--though as this opinion's substantive discussion will reflect, that result does not obtain here.

 To avoid confusion from the cross-motion structure, the bulk of this opinion is cast in the form of a review of National's motion. At the end Union's motion is taken up separately. On each motion Rule 56 requires this Court to rule in the movant's favor if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." To demonstrate that an issue is genuine the moving party must cite to some evidence in the record sufficient to suggest that its view of the issue might be adopted by a reasonable factfinder ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991)). To demonstrate that an issue is material the moving party must show that the issue is outcome-determinative under the applicable substantive law ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991)). Accordingly this opinion next outlines the principles governing judicial review of arbitration awards.

 What Statute Governs?

 Two statutes conceivably apply to this case. National has brought suit under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, which explicitly authorizes judicial review of arbitration awards. That statute applies primarily to commercial arbitration--indeed, its language expressly forbids judicial review of arbitration arising out of "contracts of employment of . . . workers engaged in interstate commerce" (id. § 1). *fn2" More to the point, Labor Management Relations Act § 301, 29 U.S.C. § 185 ("Section 301") expressly provides for judicial review of any "violation of contracts between an employer and a labor organization[.]" As was true in this case, the duty to arbitrate typically arises from the CBA itself. Hence when an arbitrator improperly discharges his or her duties or when a party to the CBA refuses to honor an arbitrator's ruling, there has been a "violation of contract[]" actionable under Section 301 and a federal cause of action exists.

 Miller Brewing, 739 F.2d at 1162 makes it plain that National has sued under the wrong law:

But section 301 was enacted long after the Arbitration Act and deals specifically, as the Arbitration Act does not, with labor contracts; it therefore supersedes, within ...

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