1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-1997

Teamsters Local 312 v. Matlack Inc

Precedential or Non-Precedential:

Docket 96-1268

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Teamsters Local 312 v. Matlack Inc" (1997). 1997 Decisions. Paper 148.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/148
Filed July 8, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1268 

TEAMSTERS LOCAL 312, 

Appellant

v. 

MATLACK, INC. 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 95-cv-05661) 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

January 14, 1997 

Before: SLOVITER, Chief Judge, GREENBERG and 

SCIRICA, Circuit Judges

(Opinion filed July 8, 1997) 
Mark P. Muller 

Teamsters Local 312 

Chester, PA 19013 

 Attorney for Appellant 

Charles E. Sykes 

Bruckner & Sykes 

Houston, TX 77057 

 Attorney for Appellee 

OPINION OF THE COURT 

SLOVITER, Chief Judge. 

This appeal presents the issue of the appropriate 

procedure to be used by the district court when it 

concludes that there were fundamental procedural 

irregularities in the course of an arbitration hearing 

between parties to a collective bargaining agreement. 

I. 

A. 

Historical Facts

Teamsters Local 312, affiliated with the International 

Brotherhood of Teamsters, AFL-CIO, ("Local 312" or "the 

Union") is the certified bargaining unit for truck drivers and 

haulers operating in the Bensalem, Pennsylvania waste 

water transportation terminal of appellee Matlack, Inc. 

("Matlack"). Local 312 and Matlack are partners to a 

Collective Bargaining Agreement ("CBA") that has been 

extended indefinitely by mutual agreement. As part of its 

operations, Matlack arranges for non-employee owneroperators who are under its supervision to drop off their 

trailers containing shipments of waste water to Matlack's 

Bensalem terminal. Those trailers arriving in Bensalem are 

not certified to haul waste water to their ultimate

 2 
destinations in New Jersey. Local 312 employees are

responsible for obtaining the necessary health and safety 

certifications from Trenton, New Jersey and then hauling 

the deposited trailers to environmental treatment facilities 

in either Deepwater or Logan Township, New Jersey. 

According to Article 50.1 of the parties' Collective 

Bargaining Agreement, which is entitled "Work 

Preservation," Matlack is expressly prohibited from

diverting or subcontracting to any other plants, businesses 

or non-bargaining unit employees, or to any other mode of 

operation, any of the hauling work that was then performed 

or to be assigned to the bargaining unit. See Art. 50.1, App. 

at 38.1 

Sometime in April 1994, employees of Local 312 noticed 

that the number of trailer loads of waste water arriving in 

the Bensalem terminal was decreasing markedly. After 

making some inquiries, the employees were informed that 

many of Matlack's incoming waste water loads were being 

deposited at another terminal in Elkton, Maryland. Based 

on this information, on June 1, 1994, Union President 

Timothy Lehman filed a grievance letter with the Company 

which constituted Step 1 of the grievance procedures set 

_________________________________________________________________ 

1. The provision reads in full: 

Section 50.1 -- Work Preservation 

For the purpose of preserving work and job opportunities for the 

employees covered by this Agreement, the Employer agrees that no 

operation, work or services of the kind, nature or type covered by, 

or presently performed or hereafter assigned to the collective 

bargaining unit by the Employer will be subcontracted, transferred, 

leased, diverted, assigned or conveyed in full or in part (hereinafter 

referred to as "divert" or "subcontract"), by the Employer to any 

other plant, business, person, or non-unit employees, or to any 

other mode of operation, unless specifically provided and permitted 

in this Agreement. 

In addition, the Employer agrees that it will not, as hereinafter set 

forth, subcontract or divert the work presently performed by or 

hereafter assigned to, its employees to other business entities owned 

and/or controlled by the Employer, or its parent, subsidiaries or 

affiliates. 

 3 
out in § 7.2 of the Collective Bargaining Agreement.2 The 

letter stated: 

Please consider this letter as a formal grievance 

under our current collective bargaining agreement 

regarding waste water loads that were previously 

handled by the Bensalem, PA terminal and are now 

handled by your Elkton, MD terminal utilizing a 

tractor that was transferred from Swedesboro. 

To the best of my knowledge, these loads originate in 

Muscatine, Iowa or other parts of the Northern 

Region and are relayed into New Jersey out of 

Elkton, MD. 

We view this as a violation of Article 50 and, as such, 

request a meeting as scheduled at once to discuss. 

App. at 41. 

On August 9, 1994, Lehman met with Michael Lynch, the 

Bensalem Terminal Manager, in accordance with Step 2 of 

the grievance procedures to discuss the grievance contained 

in the letter. At the meeting Lynch informed Lehman that 

_________________________________________________________________ 

2. Section 7.2 of the Collective Bargaining Agreement describes the 

Grievance Procedures in relevant part: 

Step 1. All grievances must be made known in writing to the other 

party within seven (7) working days after the reason for such 

grievance has occurred. 

. . . 

Step 2. If the disposition of the matter by the Terminal Manager in 

charge, or his duly authorized representative, is not satisfactory, the 

matter must be taken up by the Business Agent, and the Employer's 

Regional Representative, or other representatives of the Employer 

with authority to act, within five (5) working days of the written 

disposition set forth in Step 1. 

. . . 

Step 3. If the disposition of the matter by the Regional 

Representative or other representatives of the employer with 

authority to act, is not satisfactory either party has the right to file 

its grievance with the Joint Committee. . . . 

App. at 18. 

 4 
the waste water loads in question were originating from 

locations in addition to those in Muscatine, Iowa or other 

parts of the Northern Region. Lehman then made a 

handwritten amendment to the grievance letter indicating 

that the grievance was meant to cover all allegedly diverted 

shipments ever assigned to the Bensalem terminal, not only 

those suspected to originate from Muscatine, Iowa or"other 

parts of the Northern Region." App. at 41 ("Amended -- 

8/9/94 -- 9:31 am -- To any waste water that came into 

and out of this terminal!"). Although Lynch refused to sign 

the amended grievance, he did not object to it, and Lehman 

noted this fact on the letter. Id. 

Nothing was resolved at this grievance meeting or at a 

Joint Committee meeting held on September 12, 1994, in 

accordance with Step 3 of the grievance procedures. The 

Company maintained at both grievance proceedings that 

any shipments coming from Muscatine or elsewhere had 

never been actually "assigned" to Bensalem as 

contemplated by the "Work Preservation" guarantee of the 

CBA, but were part of "system-wide work" which could be 

dispatched to any terminal location without regard to the 

jurisdictional restriction in Article 50. The Union's position 

was that proof of a marked decrease in the number of 

wastewater shipments from locations such as Muscatine, in 

the absence of company evidence to the contrary, satisfied 

the contractually required presumption that work is being 

diverted to other, non-bargaining units in violation of 

Article 50. 

The parties agreed to arbitration and a hearing was held 

on April 27, 1995 before Arbitrator Charles D. Long. 

Matlack was represented by J. Carlisle Peet and Local 312 

by Mark Muller. There was considerable confusion in the 

course of the arbitration proceeding. At the outset of the 

hearing, Matlack's counsel announced that he wanted to 

raise two procedural defenses not previously mentioned in 

the prior grievance proceedings: the first, a"timeliness" 

objection arguing that the Union's June 1, 1994 grievance 

letter was filed after the seven day filing requirement set 

forth in the CBA; the second, an objection that the"scope" 

of the grievance contained in the letter was limited to those 

allegedly improper shipments that originated out of

 5 
Muscatine, Iowa alone and not those referred to by the 

clause "or other parts of the Northern Region" or by the 

handwritten amendment. Matlack also announced that it 

was not prepared to address the substantive issue of the 

grievance, namely whether there was an actual diversion of 

shipments "assigned" to Bensalem bargaining unit 

employees in violation of Article 50. App. at 190-92, 197. 

After Union counsel objected to Matlack's attempt to 

focus the hearing only on the procedural aspects of the 

grievance letter, the arbitrator said to Matlack: 

You'd better present your arguments as to what the 

grievance was and the scope of the substance, 

subject to jurisdiction hearing this, and then proceed 

on to the substance. So (inaudible) -- so far as it

relates to the limited load that the company speaks

of. 

App. at 199. 

Soon after, Matlack reiterated that it was unprepared to 

address anything beyond the scope of the grievance, to 

which the arbitrator replied, "I will try and make an effort, 

in order to determine how we can agree to that -- in effect, 

as long as we're all here, let's go with the Muscatine part of 

the substance." App at 201. He continued, "I will make . . . 

a determination on the scope of the issue prior to the 

holding of a second meeting, because that determination 

will determine whether or not the second day of hearing is 

necessary." Id.

Later, after confusion about the proper scope of a crossexamination, the arbitrator said, 

Because everybody is here, I'm going to let the union 

proceed, even though the case may extend beyond 

Muscatine. If, after the hearing today, I determine

that the issue is broader than just Muscatine, we'll 

have to reconvene for the company to deal with these 

other issues. And if it means recalling these 

particular witnesses so you can reopen crossexamination, I'll certainly permit you to do that. 

App. at 216. Again, after more controversy over the scope of 

the day's hearing, the arbitrator said: 

 6 
I am more concerned that, in resolving this problem, 

it is resolved on a full factual record and, therefore, 

if, in fact, the issue is determined to go beyond the 

scope of Muscatine, Iowa, I'll permit the company to 

address it at a subsequent time. 

App. at 232-33. Thus, the arbitrator appears to have 

concluded that he would permit broad questioning of the 

witnesses on all the issues -- procedural and substantive 

-- in order to create a full factual record, but that he would 

permit Matlack to address the merits of the Article 50 

argument at a later date. 

Again at the close of the day's hearing, the arbitrator 

appeared to signal to the parties that he would only decide 

the procedural issues presented that day and that Matlack 

could address and brief the merits of the dispute at a later 

date. The following colloquy occurred: 

Mr. Peet 

[counsel for Matlack]: I would like to brief the issue of the 

grievance. And I think trying to 

brief the other issue (inaudible) we 

may want to come back, depending 

upon your points on the grievance 

issue. Based upon your ruling 

(inaudible), I'd like to brief the case, 

depending on how you rule and 

how we see the grievance issue. 

. . . 

Arbitrator: I have no objection. As a matter of fact, I 

was just going to say, Mr. Lehman [Local 

312's president], its a little unusual to 

have a proceeding and then -- and then 

and my only question really -- my only 

comment (inaudible) what Mr. Peet had 

suggested was going to be (inaudible) need 

not brief it, which is go ahead and issue a 

ruling on the -- on the scope of the issue. 

If there was (inaudible) the broader issue 

for a second day of hearing, I would then 

go ahead and address the whole shooting 

 7 
match and then brief everything or close 

orally. 

I have no problem if Mr. Peet wants to 

address the scope of the issue individually, 

and whether you do it orally or brief form 

is up to you. If you want to brief it 

(inaudible) I would just ask not to take too 

long because of the day of submitting 

(inaudible). 

Mr. Peet: I would like to brief. 

Mr. Muller [counsel for Local 312]: I am going to brief 

the whole thing, 

the whole ball of 

wax. 

. . . 

Arbitrator: You understand, Mr. Muller, you're going 

to exchange briefs and you'll have the 

benefit of your brief on that. 

App. at 325-327. 

Based upon its understanding of the arbitrator's 

intentions, Matlack submitted a post-hearing brief that only 

addressed the timeliness of the Union's letter of June 1, 

1994 and whether the letter's scope extended beyond the 

Muscatine loads. Matlack stated in its brief its 

understanding that, "In the event the Arbitrator ruled that 

the alleged amendment to the grievance was valid, the 

Company would have the right to reopen the hearing for the 

purposes of further cross-examining the witnesses the 

Union presented at the April 27th Hearing, and presenting 

new evidence." App. at 49. In the Union's post-hearing 

brief, the Union answered all the procedural objections 

made by Matlack, and argued that the merits of the dispute 

rendered Matlack in violation of Article 50 and also that no 

additional hearing was necessary as Matlack never provided 

any evidence to rebut the established presumption of 

diversion and would thus be estopped from presenting such 

evidence in future proceeding. App. at 62-72. 

 8 
On June 13, 1995, Arbitrator Long sent both parties an 

award that clearly purported to render judgment in favor of 

the Union on the procedural objections regarding the scope 

and timeliness of the grievance letter as well as on the 

merits of the grievance. See App. at 89-99 (opinion, 

decision, and remedy of Arbitrator Long).3 He decided that 

the grievance letter was timely filed, that the handwritten 

amendment to the amendment extended the scope of the 

grievance to those loads originating in areas other than 

Muscatine, Iowa, and that Matlack violated Article 50 by 

diverting Muscatine loads from the Bensalem terminal. He 

awarded the Union back pay and remanded the matter to 

the Step 2 grievance procedure for disposition of those 

disputed shipments other than those from Muscatine.

On June 14, 1995 Matlack wrote to the arbitrator and 

expressed "great shock" that the arbitrator had rendered a 

decision on the merits of the grievance since all parties to 

the hearing had understood that Matlack would have 

another opportunity to present evidence on that 

substantive issue. App. at 101. What followed was aflurry 

of correspondence between Matlack and the Union about 

the propriety of the scope of the judgment and, ultimately, 

Arbitrator Long's decision to withdraw as arbitrator. On 

July 17, 1995, Arbitrator Long sent the parties a letter 

confirming his withdrawal. Again both parties sent letters 

disputing what was actually adjudged by the arbitrator and 

what remained to be decided. 

_________________________________________________________________ 

3. In his written award, the arbitrator announced that he would be 

addressing the following issues: 

1. Is the grievance of June 1, 1994, timely filed pursuant to Article 

7, section 7.2, of the collective bargaining agreement? 

2. Is the amendment of August 9, 1994, timely and, otherwise, 

valid? 

3. If not, is the grievance filed on June 1, 1994, limited solely to the 

loads of waste water originating in Muscatine, Iowa? 

4. If it is determined that the grievance is timelyfiled, has there 

been a violation of Article 50 of the collective bargaining agreement, 

as alleged? 

App. at 81. 

 9 
Arbitrator Long responded on July 31, 1995 in an 

attempt to clarify where he believed the case currently 

stood: 

My decision to withdraw from this matter concerned 

a misunderstanding concerning the procedure to be 

followed prior to a decision resolving the substantive 

portion of the issue which is separate and unrelated to 

that portion of the issue concerning the scope of the 

grievance. Consistent with the record at the close of the 

hearing on April 27, 1995, it was my intent to leave the 

matter in the following posture: 

1. a binding decision dated June 13th, 1995 

extending the scope of the underlying substantive 

issue to include the grievance of June 1, 1995 as 

amended during the step 2 grievance meeting on 

August 9, 1995. 

2. no decision concerning the underlying 

substantive issue of whether the Employer's conduct

violated Article 50, Subcontracting, of the collective 

bargaining agreement, as alleged. 

App. at 110. Based on this letter, Matlack refused to 

comply with the arbitrator's June 13, 1995 decision and 

sought the Union's agreement to rehear the matter before a 

different arbitrator. The Union refused. 

B. 

District Court Procedure

On September 7, 1995, Local 312 filed a complaint in the 

Eastern District of Pennsylvania pursuant to § 301(c) of the 

Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 

(1995), seeking to enforce the original arbitration award in 

its entirety including both its procedural and substantive 

portions. The parties filed cross-motions for summary 

judgment, submitting correspondence and deposition 

testimony from Arbitrator Long. Local 312 argued that the 

June 13, 1995 decision was a final award and, under well 

established doctrine, was entitled to complete deference by 

the court. Matlack contended that the July 31, 1995 letter 

 10 
and the arbitrator's withdrawal clearly voided the 

substantive portion of the award and entitled it to a new 

arbitration proceeding. Matlack filed the deposition of 

Arbitrator Long, which contained the following testimony: 

BY MR. MULLER [Counsel for the Union]: 

Q: Mr. Long, at any time, did you communicate to either 

Mr. Peet [counsel for Matlack] or myself, either verbally 

or in writing, that your opinion issued on June 13,

1995, was vacated? 

A: No, sir. 

See Teamsters 312 v. Matlack, Inc., 916 F. Supp. 482, 484 

(E.D. Pa. 1996). 

The district court found that "Long's answer at his

deposition raised questions in the court's mind about his 

letter of July 31" and that it was "[f]aced with some 

uncertainty as to what Arbitrator Long intended after 

issuing his June 13, 1995 award," and declined to grant 

summary judgment on the submissions. Id. The court 

requested that Arbitrator Long testify at an evidentiary 

hearing, and rejected the Union's objection to the court's 

decision to call the arbitrator as a witness. Id. at 484-85. 

After hearing Long's testimony, the district court found that 

the arbitrator had led Matlack to believe that he would not 

render a decision on the merits of the dispute and would 

permit Matlack to address that issue at a later date. Id. at 

484. The court concluded that the ultimate award followed 

from a fundamental procedural irregularity which justified 

vacating the tainted portion of the award and remanding on 

the merits. The court ordered that the arbitration award of 

June 13, 1995 was properly enforceable "as to the 

timeliness and scope of the grievance only." Id. at 487. 

II. 

This case requires us to resolve two legal issues. First, 

whether the doctrine of functus officio precluded the district 

court from examining the arbitrator's July 31, 1995 letter 

which acknowledged a procedural irregularity and clarified 

the intended scope of the arbitration award. Second, 

assuming the letter was properly considered, whether the 

 11 
district court had the legal power to vacate a portion of the 

award that resulted from the procedural irregularity. 

A. 

Functus Officio Doctrine

Local 312 contends that according to the long-standing 

doctrine of functus officio an arbitrator's power is exhausted 

immediately after s/he reaches a final decision, regardless 

of the correctness of that decision. It argues that, therefore, 

Arbitrator Long's letter purportedly clarifying his decision 

was a legal nullity and the original award as submitted, 

resolving both the procedural and substantive issues in the 

Union's favor, must be final. We conclude, however, that 

because the arbitrator's letter merely related to the 

procedural status, and did not attempt to alter the

substance of his analysis, the letter was not proscribed by 

the functus officio doctrine. 

The doctrine of functus officio, Latin for a task performed,4 

was applied strictly at common law to prevent an arbitrator 

from in any way revising, re-examining, or supplementing 

his award. Glass, Molders, Pottery, Plastics and Allied

Workers Int'l Union v. Excelsior Foundry Co., 56 F.3d 844, 

846-47 (7th Cir. 1995); Colonial Penn Ins. Co. v. Omaha

Indem. Co., 943 F.2d 327, 331 (3d Cir. 1991). The rule 

provided simply that when "arbitrators have executed their 

award and declared their decision they are functus officio 

and have no power or authority to proceed further."

Mercury Oil Refining Co. v. Oil Workers Int'l Union, 187 F.2d 

980, 983 (10th Cir. 1951). 

The policy underlying the common law doctrine derives 

from a perception that arbitrators, unlike judges, are not 

institutionally sheltered from "the potential evil of outside 

communication" and are thus particularly susceptible to 

_________________________________________________________________ 

4. Black's explains that the term is "[a]pplied to an officer whose term 

has expired and who has consequently no further official authority; and 

also to an instrument, power, agency, etc., which has fulfilled the 

purpose of its creation, and is therefore of no further virtue or effect." 

Black's Law Dictionary 673 (6th ed. 1990). 

 12 
various ex parte influences that might affect a conclusion. 

La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572, 

n.13 (3d Cir. 1967). As the Seventh Circuit stated in 

Excelsior Foundry, functus officio conceives of arbitrators as 

"ad hoc judges -- judges for a case; and when the case is 

over, they cease to be judges and go back to being law 

professors or businessmen or whatever else they are in 

private life." 56 F.3d at 847. In the same opinion, the court 

opined that the functus officio doctrine was motivated 

primarily by judicial antagonism toward arbitrators and a 

derogation of the arbitral process -- originating"in the bad 

old days when judges were hostile to arbitration and 

ingenious in hamstringing it." Id. at 846; see also CourierCitizen Co. v. Boston Electrotypers Union No. 11, 702 F.2d 

273, 278 (1st Cir. 1983) (recognizing that limitations on 

arbitrator's post award authority rested on court's hostility 

toward arbitration as dispute resolution mechanism). 

However, after the Supreme Court instructed federal

courts to fashion and apply a substantive body of federal 

labor law in § 301 LMRA enforcement proceedings, 

see Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 

456 (1957), the federal courts have been less strict in 

applying the common law functus officio rule in reviewing 

labor disputes. See, e.g., Locals 2222, 2320-2327, Int'l Bhd.

of Elec. Workers v. New England Telephone & Telegraph Co., 

628 F.2d 644, 647 (1st Cir. 1980) (considered doctrine 

irrelevant in ordering resubmission of existing arbitration 

award to original arbitrators for amplification); Enterprise

Wheel & Car Corp. v. United Steelworkers, 269 F.2d 327, 

332 (4th Cir. 1959) (upholding resubmission of award to 

arbitrator because original hostility to arbitration process 

less relevant in labor disputes), aff'd in relevant part, 363 

U.S. 593, 599 (1960); see generally, United Steelworkers v.

Ideal Cement Co., 762 F.2d 837, 841 n.3 (10th Cir. 1985) 

(listing cases). 

This court considered the continued applicability of the 

functus officio doctrine in Colonial Penn, a non-labor case in 

which the district court ruled that an arbitration panel in 

a reinsurance dispute was permitted to reconvene in order 

to correct a mistaken assumption of fact. 943 F.2d at 

329-30. We acknowledged that the doctrine remains viable, 

 13 
particularly when the arbitrator is asked to reconsider or 

amend the merits of an initial award, but listed the 

doctrine's recognized limitations: "(1) an arbi trator can 

correct a mistake which is apparent on the face of his 

award; (2) where the award does not adjudicate an issue 

which has been submitted, then as to such issue the

arbitrator has not exhausted his function and it remains 

open to him for subsequent determination; and (3) where 

the award, although seemingly complete, leaves doubt 

whether the submission has been fully executed, an 

ambiguity arises which the arbitrator is entitled to clarify." 

Id. (citing La Vale, 378 F.2d at 573) (internal quotations 

omitted). 

These exceptions from the functus officio doctrine were 

narrowly drawn to prevent arbitrators from engaging in 

practices that might encourage them to change their

reasoning about a decision, to redirect a distribution of an 

award, or to change a party's expectations about its rights 

and liabilities contained in an award. See, e.g. Colonial

Penn, 943 F.2d at 332 (emphasizing need to prevent parties 

from attempting to persuade arbitrators "to overturn an 

adverse award"). Therefore, whether a case falls within one 

of these categories must be considered in light of the 

underlying rationale for the modern application of functus

officio.

The exception under category (1) above, which allo ws an 

arbitrator to correct a mistake apparent on the face of the 

award, is designed for cases of clerical mistakes or obvious 

errors of arithmatic computation. Id. In Colonial Penn we 

concluded that this exception did not apply to alleged 

mistakes where extraneous facts must be considered. Id. 

The rationale for the exception under category (2) above, 

which authorizes an arbitrator to decide a remaining issue 

which has been submitted by the parties but not resolved, 

is that the arbitration agreement between the parties is still 

in force and the arbitrator's power over the remainder of 

the unresolved submission continues. Therefore,"the

arbitrator is not exposed to any greater risk of impropriety 

than would normally exist during the pendency of the 

arbitration proceedings." La Vale, 378 F.2d at 573. 

 14 
The case before us falls within neither category (1) nor 

(2). The arbitrator's July 31 letter did not purport to correct 

any mistakes appearing on the face of the arbitration award 

nor did the arbitrator leave undecided a particular issue 

submitted by the parties. If anything, Arbitrator Long 

decided more than the parties had anticipated, and the 

rationale for the second exception would not appear to 

accommodate the inverse factual situation. 

The coverage of category (3) above, which entitles an 

arbitrator to clarify an ambiguity in a "seemingly complete" 

award where there is "doubt whether the submission has 

been fully executed," Colonial Penn, 943 F.2d at 332, would 

not undermine the policy considerations that prohibit 

arbitrators from re-examining awards "for there is no 

opportunity for redetermination on the merits of what has 

already been decided," La Vale, 378 F.2d at 573. The La

Vale decision illustrates the situation in which 

resubmission to an arbitration panel for clarification is 

permissible. The award had been in favor of a contractor, 

Noonan, for approximately $31,000. La Vale, 378 F.2d at 

570. La Vale subsequently sued Noonan to recover 

approximately $25,000 because it had delivered Noonan a 

deposit of approximately $56,000 during the pendency of 

the proceeding. Noonan contended that the arbitration 

panel had recognized that the $56,000 represented a partial 

payment on account and that the $31,000 award was thus 

meant to be supplemental. 

We upheld the district court's resubmission of the issue 

to the arbitration panel for clarification as to whether the 

sum of $56,000 was a deposit or a payment on account. Id.

at 573. In light of the policies underlying the functus officio

doctrine, we concluded that the doctrine would not prevent 

resubmission because it would "in no way reopen the

merits of the controversy." Id. 

The decision in La Vale is consistent with the approach 

followed elsewhere. See, e.g., Courier Citizen, 702 F.2d at 

279 (arbitrator allowed to explain remedy sketched out in 

award, because situation unlike cases where "arbitrator 

issued a second award fundamentally inconsistent with the 

first award."); Hanford Atomic Metal Trades Council v.

General Elec. Co., 353 F.2d 302, 308 (9th Cir. 1965) 

 15 
(resubmission to arbitrator permissible because "not for the 

purpose of relitigating or modifying the award"); 42 Pa. 

C.S.A. § 7315(a)(2) (Pennsylvania Arbitration Act 

authorizing resubmission where "arbitrators awarded upon 

a matter not submitted to them and the award may be

corrected without affecting the merits of the decision upon 

the issues submitted."). 

In this case, we need not decide whether the 

circumstances would have justified resubmission to the 

arbitrator because Arbitrator Long withdrew before the 

matter was brought to the district court. Therefore, the 

issue before us concerns the propriety of the district court's 

consideration of arbitral post-award comment. 

In a series of cases from various circuits, the courts have 

considered supplementary information from the arbitrator 

that addressed a fundamental procedural irregularity. As 

the Seventh Circuit stated in Excelsior Foundry, if the 

functus officio doctrine were to prevent parties from 

clarifying what they perceive to be a fundamental 

procedural irregularity "[t]he result would be a gap in the 

system of arbitral justice that would make very little sense." 

56 F.3d at 847 (post award, ex parte communications

between union and arbitrator permissible and binding 

where necessary to complete or clarify an award). 

The Eighth Circuit considered a somewhat similar 

situation in Local P-9, United Food and Commercial Workers

Int'l Union v. Hormel & Co., 776 F.2d 1393, 1394 (8th Cir. 

1985), where an arbitrator issued an award in favor of the 

Union but attached a letter offering to meet with the parties 

if they wished to discuss his decision. After all the parties 

reconvened, the arbitrator issued an amended award in 

favor of Hormel. In an action brought by the Union to 

enforce the original award and vacate the "amended"

version, the Company attempted to introduce a post-award 

affidavit from the arbitrator which stated that he intended 

the original award to serve only as a non-binding draft. The 

court of appeals held that, despite the status of the affidavit 

as a "post-award comment," the district court should have 

considered the paragraph of the affidavit that stated that 

the arbitrator had informed the parties at the initial hearing 

that the first award would be only preliminary and open for 

 16 
reconsideration. Id. at 1395. After considering the policy 

reasons behind the functus officio rule, the court concluded 

that the paragraph was admissible because it "does not 

impeach the initial award or explain the arbitrator's 

decision-making process, but merely describes the 

procedural process which the arbitrator allegedly told the 

parties he would follow." Id. at 1395-96. Accordingly, the 

court directed the district court to examine that portion of 

the affidavit as well as "all other evidence -- including the 

testimony of persons who were present at the initial hearing 

as to what the arbitrator did or did not say -- to determine 

whether the award was a preliminary or final one." Id. at 

1396. 

In Ideal Cement, an arbitrator resolving a labor dispute 

about an employee's termination mailed a preliminary 

award to both parties with the suggestion that the parties 

could submit additional medical information for the

arbitrator's review. 762 F.2d at 839. The Union submitted 

the employee's relevant medical records but provided no 

copy to Ideal. The arbitrator issued a final award in favor of 

the Union, but attached a cover letter explaining that he 

had in fact finalized the award prior to receiving the Union's 

ex parte communication, and that the information did not 

influence his judgment. Nevertheless, in order to avoid even 

the appearance of impropriety, the arbitrator offered Ideal 

the choice to accept the award or to disqualify the

arbitrator and void the award. At Ideal's request, the 

arbitrator disqualified himself and set aside the award. Id. 

The Tenth Circuit affirmed the district court's refusal to 

enforce the award. The court of appeals described the 

arbitrator's offer to void his decision as a "procedural event" 

entitled to heightened deference from federal courts. Id. at 

841. The court endorsed the arbitrator's actions, suggesting 

that "[t]o avoid the appearance of impropriety he chose to 

utilize a procedural device not unlike the remittitur/new 

trial alternative offered to an overly-compensated plaintiff." 

Id. 

In this case, Arbitrator Long issued an award that 

covered matters that he had advised the parties would not 

be decided without further evidence and briefing, causing a 

fundamental procedural irregularity. It might have been 

 17 
possible to determine the existence of this irregularity from 

the tapes of the arbitration hearing without the July 31 

letter as they evidence at least some difference between 

what the parties were told at the time and what the

arbitrator did, but the parties agree that the tapes, which 

were unofficial, were inaudible in parts and incomplete. 

Under these circumstances, it was not improper for the 

arbitrator to issue the letter of July 31 clarifying his 

"misunderstanding concerning the procedure to be followed 

prior to a decision resolving the substantive portion of the 

issue" and the basis for disqualifying himself. App. at 110. 

As in Ideal Cement, this was a procedural device that was 

not relevant to the merits of the controversy but which 

"outlin[ed] his procedural decision." 762 F.2d at 842. As the 

court concluded in that case, "[t]hat the arbitrator chose to 

use such a procedure to protect the integrity of the 

arbitration process should not be subject to judicial second 

guessing." Id. at 841. 

B. 

Vacation of the Award

In the posture in which this matter was first presented to 

the district court by Local 312's suit for enforcement of the 

arbitration award, the arbitrator had already withdrawn, 

returned Matlack's arbitration file, and written the July 31 

letter which set forth the scope of the award itself. That 

letter clarifies that there had been two questions presented 

for arbitration -- the first being the procedural question as 

to whether the Union's grievance of June 1, 1994 had been 

timely filed and expanded by the amendment of 

August 9, 1994 (he decided in favor of the Union's position 

that it had) -- and the second being the substantive issue 

as to whether Matlack had violated the collective bargaining 

agreement (the letter said he had intended to make no 

decision). This record provided ample basis for the court's 

ultimate decision to enforce only that portion of the award 

that all parties agreed had been submitted dealing with the 

scope of the grievance. 

Local 312 objected to the court's decision to call the 

arbitrator to testify at a hearing as to the procedure the 

 18 
arbitrator had intended to follow. The district court 

explained that it "simply sought to find out what the 

arbitrator said at the April 27 arbitration hearing 

concerning the procedure he intended to follow." Matlack,

Inc., 916 F. Supp. at 485. While at least one court has

permitted testimony from the arbitrator to clarify the status 

of an award, see, e.g., Iron Workers Local No. 272 v. Bowen, 

624 F.2d 1255, 1264 (5th Cir. 1980) (arbitrator permitted 

to write post-award letter and testify at trial in order to 

clarify decision), calling upon the arbitrator to testify as to 

his or her intentions is questionable in light of the wellestablished principle that it is not the province of a court to 

clarify the arbitrator's award. See Colonial Penn, 943 F.3d 

at 334. Under ordinary circumstances we would not 

sanction calling an arbitrator to testify, as the written 

record would suffice to permit the court to rule on

enforcement vel non. However, we believe we can decide 

this appeal without reference to the arbitrator's testimony. 

Consistent with the July 31 letter, the district court 

determined that the arbitrator had indicated to the parties 

that he would only reach a decision on the timeliness and 

scope issues and reserve a decision on the merits of the 

Union's grievance until after Matlack had an opportunity to 

address that issue. Based on that determination, the court 

vacated the portion of the arbitrator's award that purported 

to resolve the merits of the Union's grievance. 

We exercise plenary review of the district court's decision 

resolving cross motions for summary judgment. United

Parcel Service, Inc. v. Int'l Bhd. of Teamsters Local No. 430, 

55 F.3d 138, 140 (3d Cir. 1995). We conclude that because 

the record of the arbitration proceedings as well as the 

arbitrator's July 31 letter confirming the intended scope of 

the arbitration award established that there was a 

fundamental procedural irregularity in the arbitration 

proceeding, the district court had authority to vacate the 

portion of the arbitrator's award dealing with the substance 

of the grievance. 

Local 312 argues that the district court's decision to 

vacate the arbitrator's original determination on the merits 

is inconsistent with the long line of case law firmly 

establishing the limitations on judicial intervention in 

 19 
arbitration decisions. See, e.g., United Paperworkers Int'l

Union v. Misco Inc., 484 U.S. 29, 38 (1987) ("as long as the 

arbitrator is even arguably construing or applying the 

contract" the award must be enforced, even if the court is 

"convinced [that the arbitrator] committed serious error"); 

News America Publications, Inc. v. Newark Typographical

Union, Local 103, 918 F.2d 21, 24 (3d Cir. 1990) ("there 

must be absolutely no support at all in the record justifying 

the arbitrator's determinations for a court to deny

enforcement of an award"). 

However, the doctrine severely limiting judicial review of 

arbitration awards is inapposite here because the district 

court did not purport to revisit, reinterpret, or overrule the 

arbitrator's legal or factual analysis. The correctness of the 

arbitrator's substantive conclusion was not under scrutiny. 

At common law, an arbitration award may be set aside 

where there is an adequate showing of "[f]raud, partiality, 

misconduct, violation of a specific command of law, or 

vagueness rendering enforcement impractical, or a showing 

that enforcement would be contrary to public policy." Local

863 Int'l Bhd. of Teamsters v. Jersey Coast Egg Producers,

Inc., 773 F.2d 530, 534 (3d Cir. 1985) (internal citations 

omitted), cert. denied, 475 U.S. 1085 (1986). In addition, 

"[p]rocedural irregularities . . . may also result in such 

fundamental unfairness as to warrant the vacation of an 

arbitral award." International Bhd. of Elec. Workers, Local

Union 1823 v. WGN of Colorado, Inc., 615 F.Supp. 64, 66 

(D.Colo. 1985); Robert A. Gorman, Labor Law 600-602 

(1976). 

Examples of procedural irregularities that have merited 

district court suspension of arbitration awards are varied. 

See Textile Workers Union of America v. American Thread

Co., 291 F.2d 894, 901 (4th Cir. 1961) (affirming denial of 

union's enforcement request because arbitrator went

outside record and based decision on findings from a 

different arbitration proceeding); Harvey Aluminum v.

United Steelworkers of America, 263 F.Supp. 488 (C.D.Cal. 

1967) (arbitration award remanded where arbitrator refused 

to admit certain evidence in rebuttal without giving parties 

warning about application of evidentiary rules); Electrical

Workers, 615 F.Supp. at 67-68 (vacating arbitration board 

 20 
award and remanding because neutral arbitrator rendered 

decision without obtaining the signatures of the partisan 

arbitrators, so that there was a "lack of evidence of any 

significant decision-making process by the majority of the 

board"). 

In this case the parties undertook arbitration pursuant to 

their collective bargaining agreement, and the Federal 

Arbitration Act, 9 U.S.C. § 10 (1995), is not binding. 

Nevertheless, to the extent that the Act imposes constraints 

on judicial review of arbitration awards similar to those in 

the labor context, its provisions are instructive here. 

Section 10(a)(3) of the Act (formerly 10(c)) allows a court to 

vacate an arbitration award "[w]here the arbitrators were 

guilty of . . . any . . . misbehavior by which the rights of any 

party have been prejudiced." Pursuant to this provision, we 

have held that a court has the power to vacate an 

arbitration award where an arbitrator receives ex parte 

information to the prejudice of one of the parties. Mutual

Fire, Marine & Inland Ins. Co. v. Norad Reinsurance Co.,

Ltd., 868 F.2d 52, 56-57 (3d Cir. 1989). 

In interpreting another portion of § 10(c) of the Act, we 

also have allowed a court to vacate an arbitration award if 

the arbitrator's refusal to hear proffered testimony "so 

affects the rights of a party that it may be said that he was 

deprived of a fair hearing." Newark Stereotypers' Union No.

18 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d 

Cir), cert. denied, 393 U.S. 954 (1968). Moreover, it has 

become axiomatic that a district court may vacate an award 

if a party to an arbitration proceeding has not been given 

notice and opportunity to present arguments and evidence 

on the merits of the dispute. Robbins v. Day, 954 F.2d 679, 

685 (11th Cir.), cert. denied, 506 U.S. 870 (1992); Konkar

Maritime Enters., S.A. v. Compagnie Belge D'Affretement, 

668 F.Supp. 267, 271 (S.D.N.Y. 1987) (listing cases). 

The National Labor Relations Board has itself imposed 

minimum due process standards in evaluating the fairness 

of arbitration proceedings resolving unfair labor practice 

issues. Spielberg Manufacturing Company, 112 NLRB 1080 

(1955). Thus, it has refused to defer to an arbitrator's 

decision where evidence was deliberately withheld from an 

arbitrator, Precision Fittings, 141 NLRB 1034, 1041-43 

 21 
(1963), where the grievant was given insufficient time to 

prepare, Gateway Transp. Co., 137 NLRB 1763, 1764 

(1962), or was not afforded an opportunity to cross-examine 

a witness, Versi Craft Corp., 227 NLRB 877, 887 (1977). 

In this case, the record establishes that the arbitrator 

made a fundamental procedural error in deciding the

merits of the controversy after advising the parties that he 

would not do so until after he decided the procedural issues 

and until Matlack had an opportunity to present its case on 

the merits. In the district court's words, the arbitrator 

simply "told the parties one thing and, albeit mistakenly, 

did another." Matlack, Inc., 916 F.Supp. at 486. The 

arbitrator's resolution of the merits of the Union's Article 50 

grievance without benefit of Matlack's evidence or argument 

on the issue severely impeded Matlack's right to notice and 

opportunity to be heard in such an adversarial proceeding. 

See Konkar Maritime Enters., 668 F.Supp. at 271. This is 

precisely the type of procedural error that "undermine[s] 

the validity of the arbitration process," Gorman, Labor Law

602, permits an arbitrator to take remedial measures such 

as withdrawal, and authorizes a district court to vacate and 

remand an arbitration award. 

III. 

We conclude that the functus officio doctrine did not 

proscribe the district court from examining the arbitrator's 

post award letter which purported to clarify the intended 

scope of the award, and that the arbitrator's award was 

partially the product of a fundamental procedural 

irregularity. Accordingly, we will affirm the district court's 

decision to vacate the substantive portion of the award and 

to remand the remainder of the proceedings to another 

arbitrator. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 22