NOT FOR PUBLICATION [Doc. No. 2,8]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

RITE AID OF NEW JERSEY, INC., 

 Petitioner,

v.

UNITED FOOD AND COMMERCIAL

WORKERS UNION, LOCAL 1360, 

Respondent.

Civil Action

11-00374(RMB/JS)

OPINION

Appearances:

Andrew W. Allison, Esquire

Robert James Toy, Esquire

Post & Schell PC

Four Penn Center

1600 John F. Kennedy Boulevard

Philadelphia, PA 19103

Attorneys for Petitioner

Martin William Milz, Esquire

Warren J. Borish, Esquire

Spear Wilderman, PC

230 South Broad Street

14th Floor

Philadelphia, PA 19102

Attorneys for Respondent

BUMB, UNITED STATES DISTRICT JUDGE:

This matter comes before the Court upon the motion of

Petitioner Rite Aid of New Jersey, Inc. ("Rite Aid") to vacate a

December 21, 2010 arbitration award (the “Award”) in favor of

Respondent United Food and Commercial Workers Union, Local 1360

(the "Union") and upon the Union's cross motion to confirm the

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award.1

For the reasons set forth below, Rite Aid's motion is DENIED

and the Union's motion is GRANTED.

I. Background

Between January 26, 1999 and July 26, 1999 National Labor

Relations Board (“NLRB”) elections were held, certifying the

Union as the collective bargaining representative for nonmanagement employees in four Rite Aid stores. 

On November 1, 1999, the Union and Rite Aid entered into an

oral agreement (the “Card Check Agreement”) under which Rite Aid

agreed to: 

(1) voluntarily recognize the Union as the exclusive

bargaining representative in every non-union store

where the Union presented signed authorization cards

evidencing that a majority of employees wished to be

represented by the Union; 

(2) grant the Union access to non-union stores for the

purpose of organizing; and 

(3) remain neutral during future organizing drives. 

In exchange for these benefits, Rite Aid became a participating

prescription provider in the Tri-State Health and Welfare Fund

1 This Court has jurisdiction under 29 U.S.C. § 185

because Petitioner is an employer within the meaning of

Section 2(2) of the Labor Management Relations Act

("LMRA"), 29 U.S.C. § 152(2), the Union is a labor

organization within the meaning of Section 2(5) of the

LMRA, 29 U.S.C. § 152(5), and Rite Aid and the Union

entered into a collective bargaining agreement (“CBA”)

in an industry affecting commerce within the meaning of

Section 2(7) of the LMRA, 29 U.S.C. § 152(7). 

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("the Fund"), which covered Local 1360 members in New Jersey, and

which had previously been closed to Rite Aid. While there is no

record of a written document memorializing the agreement, Rite

Aid recognized its obligations under the Card Check Agreement in

a memorandum issued by Rite Aid on November 1, 1999 (the

“Memorandum”). In the Memorandum, Rite Aid acknowledged that

there is “a special arrangement with the” Union under which Rite

Aid “has agreed to recognize ‘card checks’ to see if associates

in a store want to join the union.” The Memorandum reads in

pertinent part:

Rite Aid has a special arrangement with the UFCW Locals

1360, the union who represents some of our associates in New

Jersey. Rite Aid has agreed to recognize "card checks" to

see if associates in a store want to join the union. If the

union has union cards signed by a majority of the hourly

associates in a store, Rite Aid will recognize the union as

representative of all the associates in that store. We will

not require that the union go through a "secret ballot

election" like most unions have to do to be recognized. As

part of this arrangement, we have also agreed that Rite Aid

will take a "neutral" approach to the union's organizing

efforts. What this means is that, although we are not

encouraging anyone to join, we also will not discourage

anyone from signing a card. 

Petitioner’s Ex.1.

Eight days later, on November 9, 1999, the Union and Rite

Aid entered into a collective bargaining agreement (the “1999

CBA”), retroactively effective October 31, 1999, and terminating

November 2, 2002. Petitioner’s Ex. 3 at ¶ 3. The 1999 CBA

contains the following clause:

ARTICLE 1 - RECOGNITION

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 The Employer recognizes the Union as the exclusive

representative of all employees except only store managers,

assistant managers, pharmacists, pharmacy interns in its

drugstores in Camden, New Jersey, store #843, or replacement

stores, and to include all stores added to the union via

[National Labor Relations Board] elections or other

demonstration of the Union status acceptable to the Employer

under the jurisdiction of United Food & Commercial Workers

Union, Local 1360, now or hereafter owned and/or operated by

the Employer, doing business as Rite Aid Corporation or

otherwise and whether by the same or other person,

partnerships, associations or corporations, and whether by

concessionaires, licenses, or lessess.

See Petitioner’s Ex. 3(A). 

Following the adoption of the 1999 CBA, and consistent with

the Card Check Agreement, Rite Aid recognized the Union as the

collective bargaining representative for approximately

sixty-three stores organized through card check between November

1999 and December 2002. 

After the expiration of the 1999 CBA, on January 14, 2003,

the parties met to begin negotiating a new collective bargaining

agreement. During the meeting, Rite Aid requested information

concerning pharmacy use by retailers participating in the

Tri-State Health and Welfare Fund to determine what, if any,

benefit Rite Aid received in exchange for permitting Union

recognition by card check. Whether Rite Aid received this

information remains in dispute. 

The parties eventually entered into a second CBA (the “2002

CBA”, retroactively effective as of November 3, 2002 and set to

expire on November 5, 2005. This 2002 CBA contained a nearly

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identical recognition clause as the 1999 CBA. 

In the four years that followed the negotiation, from 2003

to 2007, Rite Aid refused the Union's request to be recognized as

the bargaining representative via the card check method six

times, in each case requiring the Union to file for an NLRB

election. 

On March 1, 2007, the parties entered into a third CBA,

retroactively effective November 6, 2005 through November 6, 2010

(the “2005 CBA”), which again contained essentially the same

recognition clause as had been contained in the parties' earlier

bargaining agreements. The 2005 CBA mandated arbitration of

“[a]ll grievances or disputes arising during the term of [the

2005 CBA] concerning interpretation or application of the

provisions of” the 2005 CBA. While the scope of dispute that may

be brought before the arbitrator is broad, his power is more

limited: the arbitrator does “not have the authority to amend,

modify or in any manner change the” 2005 CBA. Petitioner’s Ex. 3

at Ex. C. 

On November 8, 2007, pursuant to the same arbitration

provision, the Union submitted to arbitration a claim that Rite

Aid had improperly refused to accept the card check method for

Union recognition in contravention of the Card Check Agreement,

the 2005 CBA, and past practice. After a hearing, arbitrator

Richard Kasher(the “Arbitrator”) issued a written opinion,

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finding that: 

Whether one characterizes the November 1, 1999 memorandum as

an "arrangement" or "agreement," in this Arbitrator's

opinion there is no substantive difference. There was a

mutual commitment, a clear understanding and consideration. 

The parties, not this Arbitrator, amended and modified the

terms of Article 1, the Recognition Clause. The parties

agreed that the Company would not exercise the option to

insist upon an NLRB election when the Union presented a

majority of authorization cards from the employees at a Rite

Aid store.

Petitioner’s Ex. 1. The Arbitrator further found that neither

the adoption of subsequent CBAs, nor Rite Aid’s refusal to honor

the Card Check Agreement, “vitiate[d]” the Card Check Agreement. 

Id. Accordingly, the Arbitrator sustained the Union's grievance

and ordered Rite Aid "to cease and desist from such violation and

comply with the terms of the neutrality/card check agreement." 

Upon receipt of this decision, Rite Aid initiated this suit and

moved to vacate the Award. The Union cross-moved for enforcement

of the Award.

II. Standard

"[A]rbitration awards are entitled to a strong presumption

of correctness which can only be overcome in limited

circumstances . . . .” Jones v. Intarome Fragrance Corp., No.

04-5625, 2007 WL 1296656, at *3 (D.N.J. Apr. 27, 2007). By

statute, an award will be vacated:

(1) where the award was procured by corruption, fraud or

undue means;

(2) where there was evident partiality or corruption in the

arbitrators, or either of them;

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(3) where the arbitrators were guilty of misconduct in

refusing to postpone the hearing, upon sufficient cause

shown, or in refusing to hear evidence pertinent and

material to the controversy; or of any other

misbehavior by which the rights of any party may have

been prejudiced; or 

(4) where the arbitrators exceeded their powers, or so

imperfectly executed them that a mutual, final, and

definite award upon the subject matter submitted was

not made.

9 U.S.C. § 10. 

In addition to the four statutory bases for vacating an

arbitration award, there are three common law grounds for

vacatur: 1) an arbitrator's manifest disregard for the law, as

opposed to a legal error; 2) if the award is completely

irrational; and 3) if the award is contrary to public policy. 

Jones, 2007 WL 1296656 at *3; On Time Staffing, LLC v. Coast To

Coast Installations, Inc., No. 09-4158, 2009 WL 3260642, at *1 n.

2 (D.N.J. Oct. 8, 2009). 

Absent allegations of fraud, partiality, or misconduct, or

public policy concerns, the Third Circuit has distilled the

remaining grounds for vacatur into the following test:

A district court may determine only whether or not an

arbitrator’s award ‘draws its essence’ from the parties’

collective bargaining agreement . . . . Once a court is

satisfied that an arbitrator's award draws its essence from

a collective bargaining agreement, it is without

jurisdiction to consider the award further. An award draws

its essence from a collective bargaining agreement if its

interpretation can in any rational way be derived from the

agreement, viewed in light of its language, its context, and

any other indicia of the parties' intention. As a general

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rule, we must enforce an arbitration award if it was based

on an arguable interpretation and/or application of the

collective bargaining agreement, and may only vacate it if

there is no support in the record for its determination or

if it reflects manifest disregard of the agreement, totally

unsupported by principles of contract construction. 

Brentwood Med. Assocs. v. United Mine Workers of Am., 396 F.3d

237, 240-41 (3d Cir. 2005)(citations omitted)(emphasis in

original). Importantly, it is not the Court’s role “to correct

factual or legal errors made by an arbitrator.” Id. at 240. 

III. Analysis

Rite Aid does not allege fraud, corruption, or misconduct on

the part of the arbitrator, or raise any public policy concern in

its motion for vacatur. Rather, Rite Aid contends that the

Arbitrator failed to draw from the essence of the 2005 CBA and

exceeded his power by amending or altering the 2005 CBA. Rite

Aid claims that the Arbitrator failed to draw from the essence of

the 2005 CBA because: 

(1) the recognition provision contained in all three CBAs,

on its face, reserved to Rite Aid the absolute

discretion, and not the obligation, to choose whether

to recognize the Union via card check, and Rite Aid

never had any obligation to allow card check;

 (2) the arbitrator’s decision improperly considered

extrinsic evidence - the “historical decision to

voluntarily recognize the Union” - in finding

otherwise; and

(3) even if Rite Aid at one point had an obligation under

the Card Check Agreement, any such obligation was

superseded by the 2002 and 2005 CBAs.

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Finally, Rite Aid claims that the Arbitrator exceeded his

authority under the 2005 CBA by amending the 2005 CBA to impose

an obligation by Rite Aid to accept card check. For three

reasons, this Court cannot say that the Arbitrator failed to draw

from the essence of the 2005 CBA or exceeded his authority under

it. 

1. Rite Aid’s Motion Improperly Seeks Review Of Alleged

Legal Errors.

First, while Rite Aid’s arguments are cloaked in the cover

of proper arguments as to the 2005 CBA’s “essence” and the

Arbitrator’s authority, laid bare they really amount to a claim

of legal error on the part of the Arbitrator. Rite Aid does not

take issue with the existence of the Card Check Agreement, which

was stipulated to by the parties. Rite Aid’s real complaint is

to the Arbitrator’s legal conclusion that the Card Check

Agreement amended the 2005 CBA. 

It is not this Court’s role to correct legal error by the

Arbitrator. Brentwood Med. Assoc., 396 F.3d at 240. If this

admonition is to have any meaning, a finding that an award fails

to draw from the essence of a CBA based on either a failure to

look to the CBA’s plain language or because the award rests on

consideration of “improper” extrinsic evidence, as Rite Aid

alleges, must be reserved for highly limited circumstances. It

is proper to vacate on these bases only when it can be readily

determined that, in the face of clear and unambiguous CBA

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language, the award invented, from whole cloth, new or

inconsistent obligations based on an arbitrator’s sense of

fairness or non-binding past practices. Pa. Power Co. v. Local

Union No. 272, 276 F.3d 174, 181 (3d Cir. 2001)(holding that

arbitrator’s award was improper“personal brand of justice” where

arbitrator overrode clear and specific terms of agreement by

importing inapplicable anti-discrimination policy into employee

benefit policy); Brentwood, 396 F.3d at 243 (holding that

“arbitrator’s quotation of language not present in the agreement”

was improper, but even then finding that vacatur was

unwarranted); CP Kelco US, Inc. v. Int’l Union of Operating

Engineers, 381 F. App’x 808, 814 (10th Cir. 2010) (holding that

it was improper to consider past practices where the CBA was

unambiguous). 

In this circumstance, a court may properly vacate an award

because it is based on the arbitrator’s clear consideration of a

manifestly improper source. Where, however, an arbitrator relies

on evidence that is anything less than manifestly improper, his

decision to use that evidence, and determinations based on it,

veer towards essentially unreviewable legal decisions as to

contract interpretation. See Dauphin Precision Tool v. United

Steel Workers of Am., 338 F. App’x 219, 222 (3d Cir. 2009) (“We

do not review the merits of [an arbitration] decision or correct

factual or legal errors.”).

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The Arbitrator’s decision here falls in the latter category. 

The Award cannot be said to have relied on either notions of

fairness, or non-binding past practices. Rather, the Arbitrator

found, based on testimony and the written stipulation of the

parties, that a separate agreement - the Card Check Agreement -

existed and amended the CBA. This legal determination rested on

several subsidiary legal findings, including: the implicit

finding that it was proper to consider the oral agreement and

that it was not parol evidence; the finding that the Card Check

Agreement was a binding, enforceable agreement; and the finding

that the 2005 CBA did not supersede the earlier Card Check

Agreement. Because Rite Aid’s arguments relate to these legal

decisions, and this Court does not review awards for simple legal

error but only for manifest disregard for the law, which Rite Aid

does not claim, Rite Aid’s motion to vacate must be rejected. 

Major Leage Umpires Ass’n v. Am. Leauge of Prof’l Baseball Clubs,

357 F.3d 272, 289 (3d Cir. 2004)(“In closing, we cannot help but

note that, at their core, many of the claims raised by both sides

in this litigation amount to little more than requests for

judicial review of the merits of the Award. We reiterate that

such review is inimical to the public policy underlying the

limited role assigned to the federal courts in the area of

arbitration.”) 

This does not mean the Court agrees with the Arbitrator’s

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legal conclusions. Indeed, the Court finds Rite Aid’s

interpretation of the agreements at issue more persuasive. 

However, this Court’s disagreement with the Arbitrator’s

construction - the construction of the agreements the parties

bargained for - is not a proper basis for vacatur. Pa. Power

Co., 276 F.3d at 182 (“I find the majority's interpretation of

the collective bargaining agreement more persuasive than the

arbitrator's, but I cannot agree that the arbitrator's decision

did not ‘draw its essence from the contract’ or that the

arbitrator was not ‘even arguably construing the contract.’ . . .

That the arbitrator probably misconstrued that provision is

beside the point. The parties bargained for the arbitrator's

construction of the agreement, and that is what they got.”)

(Alito, J., dissenting); see also Nat’l Postal Mail Handlers

Union v. Am. Postal Workers Union, 589 F.3d 437, 439 (D.C.Cir.

2009). Holding otherwise, as seen below, would create a backdoor

to the type of legal second-guessing that our federal arbitration

policy is designed to avoid. Pa.Power, 276 F.3d at 178 (“In

light of the federal policy encouraging arbitration awards, there

is a strong presumption in their favor.”). 

2. The Arbitrator’s Award Drew Its Essence From The CBA. 

Second, even taking Rite Aid’s arguments at face value, the

Arbitrator’s Award properly drew from the essence of the CBA. 

A. The Recognition Provision Was Ambiguous And The

Arbitrator Did Not Fail To Draw From the the CBA’s

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Essence By Ignoring Its “Plain” Terms.

Rite Aid first argues that the Arbitrator improperly ignored

the plain language of the 2005 CBA. While Rite Aid is correct

that an arbitrator fails to draw from the CBA’s essence where he

ignores plain and unambiguous language in the CBA (Brentwood, 396

F.3d at 246), all three CBAs contained some ambiguity as to Rite

Aid’s union recognition obligations. The provisions all

indicated that Rite Aid would accept “elections or other

demonstration of the Union status acceptable to the Employer.” 

Rite Aid contends that the provision entitled it to absolute

discretion going forward as to the demonstrations it would

accept. However, an equally plausible construction of the

provision is that Rite Aid must allow for other methods of

demonstration that the parties understood to be “acceptable” to

Rite Aid at the time of each CBAs’ execution based on past

practice or prior agreement.

B. The Arbitrator Did Not Fail To Draw From The

Agreement’s Essence By Relying On Improper Parol

Evidence; Consideration Of The Card Check

Agreement Was Permissible And The Award

Appropriately Looked To Both The Card Check

Agreement And 2005 CBA In Drawing Out The Essence

Of The Parties’ Agreement.

Essentially rehashing its first argument, Rite Aid next

contends that the Arbitrator improperly considered parol evidence

of its “historical decision to voluntarily recognize the Union.” 

In order for the parol evidence rule to apply, a written

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agreement must be both unambiguous and integrated. Starter Corp.

v. Converse, Inc., 170 F.3d 286, 295 (2d Cir. 1999). “A written

contract is considered integrated when the parties intend it to

constitute the complete and final expression of their agreement. 

When a contract lacks an express integration clause the district

court must determine whether the parties intended their agreement

to be an integrated contract by reading the writing in light of

the surrounding circumstances.” Id. (citations and quotations

omitted). Therefore, even if the recognition provision were

unambiguous, the Arbitrator could still properly consider the

Card Check Agreement to determine where the 2005 CBA was an

integrated agreement. 

While admittedly creating a circular process, there is

authority that a court may consider whether extrinsic evidence,

including a contemporaneous oral agreement, signals an intent

that a contract is not integrated, thus allowing the court to

consider the same extrinsic evidence in its interpretation of the

contract at issue. Restatement 2nd of Contracts § 214

(“Agreements and negotiations prior to or contemporaneous with

the adoption of a writing are admissible in evidence to establish

(a)that the writing is or is not an integrated agreement”). 

Because the 2005 CBA lacked an “integration clause,” because

both parties admit to the existence of the oral Card Check

Agreement, and because the 1999 CBA, which contained the same

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recognition provision, was negotiated roughly contemporaneously

with the Card Check Agreement, the Arbitrator could have properly

found that the parties did not intend the 2005 CBA to be

integrated. Merk v. Jewel Food Stores Div. of Jewel Cos., Inc.,

945 F.2d 889, 893 (7th Cir. 1991)(“We agree that the parties did

not intend the written terms of the CBA to embody their entire

agreement, for neither the Union nor Jewel denies the existence

of an additional oral term to the contract-they only dispute its

content.”); Anderson v. Liles, 774 F. Supp. 2d 902, 908 (N.D.

Ill. 2011)(finding that CBA was not integrated due to presence of

oral side agreement and therefore that oral side agreement was

not inadmissible parol evidence) (rev’d on reconsideration as to

the contract’s integration, but not as to the applicable

reasoning).

From there, it naturally follows that it was permissible for

the Arbitrator to resolve the impact of the Card Check Agreement

on the underlying CBA. Merk, 945 F.2d at 893 (“And once the CBA

was found not integrated as a matter of law, it was proper for

the jury to resolve the additional factual question of the

precise terms of the oral promise. The jury ultimately believed

Jewel's version of the story, concluding that the parties had

orally agreed to reopen the economic terms of the contract in the

event Cub Foods penetrated the Chicago market. The oral reopener,

therefore, became an enforceable part of the CBA.”)(but reversing

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the jury’s award on other grounds); Starter Corp., 170 F.3d at

295 (“When an agreement is not integrated, the parol evidence

rule does not apply and extrinsic evidence of a separate oral

agreement can be considered.”)2

Given that it was permissible for the Arbitrator to consider

the Card Check Agreement’s impact on the 2005 CBA, the only

question that remains is whether his ultimate analysis properly

drew from the essence of the parties’ agreement. And where, as

2 Plaintiff’s sole citation as to the inadmissibility of

oral agreements, as opposed to non-binding past

practice, is Int’l Brotherhood of Teamsters, Local 513

v. Comair, Inc., No. 2008-219, 2010 U.S. Dist. Lexis

21123, *12 (E.D.Ky. Mar. 9, 2010) (holding that an

“arbitrator or court has no authority to consult

extrinsic evidence such as alleged oral agreements”). 

That case, however, dealt with a provision that the

arbitrator himself found “plain on its face” and in

which the arbitrator’s award considered the

“impractical consequences” of a strict application of

the provision at issue. There are no similar findings

here. To the extent Int’l Brotherhood otherwise holds

to the contrary, such an interpretation would

critically undermine the well-established rule that a

“collective bargaining agreement may be partly or

wholly oral as well as partly or wholly in writing and

a written collective bargaining agreement may be orally

modified.” McQuestion v. N.J. Transit Rail

Operations., Inc., 30 F.3d 388, 393 (3d Cir. 1994)

(citing Fifth Circuit case for this proposition); Merk,

945 F.2d at 901 (“The Supreme Court has said repeatedly

that labor relations require more flexibility than the

common law allows — not, as my colleagues hold, more

formality. . . . Flexibility entails giving labor and

management the option of having a fully integrated

agreement, of banning oral side agreements, as well as

the option of coming to partially-written,

partially-oral understandings.”) (Easterbrook, J.,

dissenting). 

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here, a valid side agreement exists alongside the CBA, it is

proper for the Court to review the side agreement in conjunction

with the CBA, in assessing whether the Award drew from the

contract’s essence. Keebler Co. v. Milk Drivers and Dairy Emps.

Union, 80 F.3d 284, 288 (8th Cir. 1996); Int’l Union v. Dana

Corp., 278 F.3d 548, 557-58 (6th Cir. 2002) (holding that the

arbitrator’s award drew its essence from the CBA where it

reasonably construed the terms of side letter agreement that a

corporation would maintain neutrality); Case-Hoyt Corp. v.

Graphic Commc’ns Int’l Union Local 503, 960 F. Supp. 32, 37

(W.D.N.Y. 1997) (“Accordingly, the arbitrator's decision with

respect to Strader's grievance draws its essence from the sideletter agreement and must be confirmed.”)(aff’d, 159 F.3d 1345). 

Because the Arbitrator’s interpretation of the Card Check and

2005 CBA was rationally construed from these two agreements, the

Arbitrator drew from their essence, and this Court will not

vacate the Award on this basis. 

C. The Arbitrators’ Finding That The Card Check

Agreement Survived The 2005 CBA Properly Drew From

The Agreements’ Essence.

Rite Aid’s third argument is that the Card Check Agreement

did not amend the 2005 CBA. Review of an arbitrator’s decision

as to whether a component of a CBA survives its expiration and

the adoption of a subsequent CBA “is very narrow and deferential”

and essentially reviewed solely for rationality.” Accuride Erie,

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L.P. v. Int’l Union, Auto. Aerospace & Agric. Implement Workers

of Am., 257 F. App’x 574, 579 (3d Cir. 2007). “[P]arties to

collective bargaining agreement may provide for rights that

survive beyond expiration of agreement.” Int’l Union v. Skinner

Engine Co., 188 F.3d 130, 138 (3d Cir. 1999). 

Here, the absence of any integration clause in the 2005 CBA,

the ease with which one could have been written, Rite Aid’s

demand for Union member pharmacy utilization rates, and Rite

Aid’s history of card check recognition, though mixed, could all

rationally support the Arbitrator’s finding that the Card Check

Agreement survived the adoption of the 2005 CBA. Id. (finding

the reverse because of an integration clause, the lack of any

mention of the term at issue in the more recent agreement, and

the ease with which such mention could have been made).3 Indeed,

the Arbitrator appears to have relied on some of these facts in

his Award. (“This amendment to the collective bargaining

3 Rite Aid relies almost entirely on Beverage Indus. 

Local No. 744 Health and Welfare Fund v. Quality Beers

Ltd. P’ship, 58 F. Supp. 2d 910 (N.D. Ill. 1999), in

support of this argument. That decision, though

factually analogous, is inapposite in three key

respects. In Beverage, the court, directly reviewing a

CBA de novo, rejected consideration of a side agreement

because it found both that the CBA language at issue

was unambiguous and that the CBA contained an

integration clause, making the CBA an integrated

agreement and the side agreement inadmissible parol

evidence. Id. at 915-16. Here, in contrast, the Court

is reviewing the decision of an arbitrator interpreting

a CBA that lacked a clear integration clause and with

ambiguous language. 

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agreement was then confirmed by a consistent, mutually-recognize

practice for a period of three years . . . . It was not the

Union’s obligation to propose a change . . . . There is no

evidence in the record that [Rite Aid] made any [attempt to

change the CBA.]”). 

As part of this argument, Rite Aid also argues that the

Arbitrator’s decision improperly infringed upon its right to

insist on NLRB elections because employers waive that right only

when they enter into a “clear and unequivocal agreement to do so”

particularly where, as here, the waiver in question is

indefinite. While the Arbitrator did not spell out his reasoning

as to waiver - and was not required to (Exxon Shipping CO. v.

Exxon Seamen’s Union, 73 F.3d 1287, 1297 (3d Cir. 1996)

(“Arbitrators have no obligation to explain their reason for an

award or even to write an opinion unless the contract so

requires.”)(quotation and citation omitted)) - he could have

rationally found, based on the parties’ oral agreement, the

Memorandum, and Rite Aid’s recognition of card check following

the agreement, that the Card Check Agreement represented a clear

and unequivocal waiver. 

D. The Arbitrator Did Not Exceed His Authority By Amending

The 2005 CBA.

Rite Aid’s final argument is that the Arbitrator exceeded

his authority by amending the 2005 CBA. This Court has already

ruled that it was within the Arbitrator’s authority to look to

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the Card Check Agreement in drawing out the essence of the

contract, and therefore rejects this argument.

3. The Card Check Agreement Was Independently Arbitrable.

Third, this Court will not vacate the Award because the Card

Check Agreement was itself independently arbitrable. As the

Union points out in its briefing, the Third Circuit takes a broad

view of arbitrability, holding that a dispute as to a side

agreement is arbitrable if "the subject matter of the side

agreement is within the scope of the arbitration clause of the

CBA." Inlandboatmens Union of the Pac. v. Dutra Grp., 279 F.3d

1075, 1080 (9th Cir. 2002)(citing to Third Circuit decision). 

The 2005 CBA, under which the arbitration was instituted,

broadly calls for arbitration of all grievances or disputes

"arising during the term of this Agreement concerning

interpretation or application of the provisions of the

Agreement.” The Card Check Agreement dealt with Rite Aid's union

recognition procedure, a subject that dovetailed with

interpretation/application of the CBA's union recognition

provision, and therefore within the scope of the CBA arbitration

provision, and arbitrable. Inlandboatmens, 279 F.3d at 1080

("Here, the arbitration clause of the CBA is reasonably broad,

and covers '[a]ny dispute concerning the interpretation or any

other dispute between the parties hereto regarding wages, working

conditions, or any other matters referred to in this

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Agreement....' The subject matter of the side agreement that is

in dispute here-Dutra's subcontracting practices-is a matter

explicitly referred to in the written collective bargaining

agreement, and thus clearly falls within the purview of the

arbitration clause."). 

Because the Card Check Agreement was itself independently

arbitrable, its enforceability was a matter for the Arbitrator,

not this Court, to decide. Becker Autoradio U.S.A., Inc. v.

Becker Autoradiowerk GmbH, 585 F.2d 39, 46 (3d Cir. 1978)

(holding that alleged oral agreement was arbitrable and that it

was for arbitrator alone to decide all disputes concerning

alleged oral agreement, since the oral agreement was within the

broad scope of the written agreement’s arbitration clause); Slye

v. Cent. States Se. and Sw. Areas Health and Welfare Fund, 956 F.

Supp. 1357, 1365 (S.D. Oh. 1997)(enforceability of alleged side

agreement, which defendants claimed was “invalid” because of the

parol evidence rule and superseded by a subsequent CBA, was

matter for arbitrator to decide).

IV. CONCLUSION

For all the foregoing reasons, this Court DENIES Rite Aid’s

motion and GRANTS the Union’s motion.

Dated: November 28, 2011 s/Renée Marie Bumb 

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE

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