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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED PARCEL SERVICE, INC.,

Plaintiff(s),

v.

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, LOCAL NO. 174,

Defendant(s).

NO. C05-1864P

ORDER ON CROSS-MOTIONS FOR

SUMMARY JUDGMENT

The above-entitled Court, having received and reviewed:

1. United Parcel Service, Inc.’s Motion for Summary Judgment to Vacate Arbitration Decision

2. Teamster Local 174's Opposition to UPS’s Motion for Summary Judgment

3. Teamster Local 174's Motion for Summary Judgment

4. Response by United Parcel Service, Inc. to Local 174's Motion for Summary Judgment

and all exhibits and declarations attached thereto, makes the following ruling:

IT IS HEREBY ORDERED that summary judgment shall be GRANTED for DEFENDANT,

and therefore this matter shall be DISMISSED with prejudice.

Background

The parties’ collective bargaining agreement (CBA) consists of 4 documents: The National

Master Agreement, the West Supplement, the JC 28 Rider and the JC 28 Sort Addendum. The latter

two agreements cover the operations of Plaintiff United Parcel Service, Inc. (“UPS”) in the state of

Washington. As a result of negotiations for the 1997 - 2002 National Master Agreement, UPS agreed

to create 10,000 new full-time jobs by combining a variety of part-time jobs into full-time positions

with their own pay scale and benefits. These came to be known as “22.3/40" jobs. These 22.3/40

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employees would work alongside regular part-time employees and typically would have different

managers for each half of their job responsibilities.

In negotiating the JC 28 Rider and Sort Addendum agreements for 2002, the following

language was proposed by Defendant, agreed to by Plaintiff, and included in the agreement:

Coverage for vacation, holidays, or absences for all full-time Article 22.3/40

combination jobs shall be done by part-time employees in seniority order from the extra

work sign-up list.

JC Rider, Art. I, § 9(F); Exh. A., p. 208. Following the finalization of the CBA, Defendant discovered

that Plaintiff was not using part-time employees off the extra work sign-up list in seniority order to

cover absences of 22.3/40 employees; in fact, they were following their traditional practice of covering

the work with employees who were already on shift. Defendant grieved the practice and it was

processed through the CBA grievance procedure to arbitration.

The CBA delimits the arbitrator’s authority as follows:

The authority of the arbitrator shall be specifically limited to the matters submitted to

the arbitrator and the arbitrator shall have no authority in any manner to amend, alter,

modify or change any provision of this Agreement.

National Master Agreement, Art. 28, § 4; Exh. A, p. 180.

Plaintiff framed the issue to the arbitrator in this manner:

Did the company violate Article I, Section 9.F of the Joint Council 28 Rider when it did

not automatically replace an absent 22.3 employee with a part-time employee on

overtime from the extra work sign-up list?

Defendant framed the issue slightly differently:

Whether the Company violated the collective bargaining agreement when it failed to

utilize part-time employees in seniority order from the extra work sign-up list to cover

for vacations, holidays, or absences for all full-time Article 22.3/40 combination jobs? 

Is so, what is the appropriate remedy?

After hearing argument and receiving post-hearing briefing from sides, the arbitrator identified

the issue this way:

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Did the Employer violate Article 1, Section 9 (F) of the Joint Council 28 Rider (JC28

Rider) and the Collective Bargaining Agreement (NMA) when it did not replace absent

22.3/40 employees with part-time employees in seniority order from the extra work

sign-up list to cover vacations, holidays or absences of full-time Article 22.3/40

combination jobs whether or not over-time may be required?

If the Employer is in violation of the agreement, what is the appropriate remedy?

Decision of the Arbitrator; Exh. F, p. 538.

In his own words, the arbitrator ruled that the language of the JC 28 Rider “does not permit

the Employer to fill. . . absences or vacancies of Article 22.3/40 employees by two part-time

employees. Vacancies must be filled by part-time employees in seniority order from the extra work

sign-up list.” Id., Conclusion 3; Exh. F, p. 545. The arbitrator’s analysis resulted in a two-part ruling: 

(1) Answering the question “did the Employer violate Article I, § 9(F)?” in the affirmative; the

arbitrator ruled that Plaintiff breached the agreement by failing to replace every absent 22.3/40

employee with a part-time employee in seniority order from the extra work sign-up list (i.e., by

acting as though they had the discretion to decide whether to hire off the list or shift the work

to already-present employees); and 

(2) Answering the question of “what is the appropriate remedy?” by ruling that Plaintiff must 

provide coverage by utilizing a single part-time employee off the extra work sign-up list (i.e.,

Plaintiff would not be permitted to fill the vacancies with two part-time employees).

Discussion

Standard of Review

Arbitrators’ decisions are entitled to a great degree of deference (Pack Concrete v.

Cunningham, 866 F.2d 283, 285 (9th Cir. 1989)) and the law in the Ninth Circuit is that they should be

upheld if they “ ‘even arguably construed or appl[ied]’ the collective bargaining agreement that

governed the employee’s relationship with his employer...” Hawaii Teamsters and Allied Workers

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Union, Local 996 v. UPS, 241 F.3d 1177, 1178 (9th Cir. 2001)(citations omitted). Reviewing courts

are not permitted to overturn an arbitrator’s decision for errors of law or fact. Stead Motors v.

Automotive Machinists Lodge No.1173, 886 F.2d 1200, 1209 (9th Cir. 1989). Our inquiry is limited

to whether the arbitrator exceeded the scope of his/her contractual authority under the CBA and

“whether the arbitrator interpreted the collective bargaining agreement, not whether he did so

correctly.” Hawaii Teamsters, 241 F.3d at 1178 (emphasis in original). If the ruling represents a

plausible interpretation of the contract, it must be enforced, even if it is ambiguous. Stead Motors,

886 F.2d at 1209.

Perhaps even more critical to the analysis of this dispute is the standard of review for the

arbitrator’s interpretation of the scope of the issues submitted to him. The Ninth Circuit’s formulation

of that standard adheres closely to that for the arbitrator’s other decisions:

[A]n arbitrator’s interpretation of the scope of the issue submitted to him is entitled to

the same deference accorded his interpretation of the collective bargaining agreement. 

This approach is consistent with well-established principles of federal labor law and is

supported by the decisions of those circuits that have considered the issue, each of

which has adopted a deferential standard of review. Pack Concrete, 866 F.2d at 285

(footnote with string citations omitted).

Plaintiff presents four arguments for overturning the arbitrator’s ruling; this order will analyze

each in turn.

Did the arbitrator fail to decide the issue which was submitted to him?

The arbitrator basically combined the two issue statements submitted by the parties. His

formulation of the issue as a question of whether Plaintiff violated the agreement when it didn’t replace

absent 22.3/40 workers with workers off of the extra work sign-up list unquestionably encompasses

Plaintiff’s issue of whether it violated the agreement when it didn’t automatically pull replacement

workers off the list. The first part of his ruling (every absent 22.3/40 employee must be replaced by a

part-time worker off the list) is a direct response to this question.

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Plaintiff did not include the question “if there is a violation, what is the remedy?” in its issue

statement, but Defendant did (and the question of remedy is implied in Plaintiff’s formulation in any

event). The second part of the arbitrator’s ruling (i.e., Plaintiff must use a single part-time worker off

the list) is his interpretation of the remedy which the contract contemplated; it is not a different issue

than the parties submitted.

The Court finds that the arbitrator did not fail to decide the issue which the parties submitted

to him.

Did the arbitrator ignore the parties’ agreement?

Plaintiff argues that the parties agreed between themselves that an absent 22.3/40 employee

could be replaced by two part-time workers and that the arbitrator ignored that agreement in reaching

his conclusion. Defendant denies that such an agreement was ever made (Def. Opposition, pp. 4-5),

but in any event the burden is on Plaintiff.

Plaintiff’s argument on this point fails in two regards: first, no evidence is cited that there was

such an agreement and second, neither statutory nor case authority is cited for the position that the

arbitrator is under any obligation to consider agreements extrinsic to the written contract in reaching

his decision.

Did the arbitrator ignore the “plain meaning” of the agreement?

Plaintiff claims that the term “coverage” had an established meaning in the agreement and in

their established practice and that the term did not contemplate “automatic replacement” of an absent

employee.

There are two problems with this argument. First, Plaintiff claims but never supports the

contention that there is an “established meaning” of the word “coverage” within the agreement; there

is no citation to a definitions section in the agreement nor citations to other portions of the agreement

where the word “coverage” is used as Plaintiff claims it was intended. More importantly, the arbitrator

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was completely within his authority to interpret a term of the contract as he saw fit; this Court’s job

on review is to determine whether he was within the confines of the agreement and the issue as it was

framed for him, not whether he interpreted a term of the contract “correctly.” The term is in the

contract, the issue of its meaning was squarely before him, and the arbitrator interpreted it to mean

“mandatory replacement” in this context.

Plaintiff has failed to establish that the arbitrator had evidence of any “plain meaning” before

him or was bound by such meaning even if evidence of it was before him. 

Did the arbitrator amend or alter the agreement in his ruling?

Plaintiff’s final argument is that, in Conclusion No. 4 of his Decision, the arbitrator improperly

modified the agreement by substituting “absence” for “coverage” in his statement “Absences for all

full-time Article 22.3/40 jobs shall be done by part-time employees in seniority order from the extra

work sign-up list.” Decision of the Arbitrator, Exh. F, p. 546.

As Defendant points out, all the arbitrator did was accurately quote a portion of the disputed

section in this part of his conclusion. The entire sentence reads “Coverage for vacations, holidays or

absences. . . etc.” The arbitrator had already quoted the complete section three times previously and

there is no real doubt that his intention was to summarize, rather than re-write, the disputed section.

The Court finds that the arbitrator neither altered nor amended the agreement in his ruling.

Based on what they characterize as an “unjustified” and “unseemly” attempt by Plaintiff to

attack an unfavorable arbitration result, Defendant requests an award of attorney fees and costs for

this appeal. The Court finds that this appeal cannot be unequivocally characterized as having been

taken in bad faith – the arbitrator’s decision is not without a certain degree of ambiguity, and the final

result (while within the arbitrator’s scope of authority) appears to have exceeded the expectations of

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both parties (in its formulation of the “single-employee” rule) and therefore could have been expected

to provoke an appeal.

Conclusion

The arbitrator was acting within the scope of his authority and within the confines of issues as

framed by the parties. His decision is solidly based in the parties’ collective bargaining agreement and

will not be overturned on appeal.

This decision disposes of all the issues before this Court on appeal in this case, and it will be

DISMISSED with prejudice in its entirety.

The clerk is directed to provide copies of this order to all counsel of record.

Dated: July _28__, 2006

AMarsha J. Pechman

U.S. District Judge

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