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. e du/thir dc ir c uit_1997/148Filed 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 hear ing between parties to a collective bargaining agreemen t.

I.

A.

Historical Facts

Teamsters Local 312, affiliated with the Internatio nal 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 was te water transportation terminal of appellee Matlack, Inc. ("Matlack"). Local 312 and Matlack are partners to a Collective Bargaining Agreement ("CBA") that has be en extended indefinitely by mutual agreement. As part of its operations, Matlack arranges for non-employee owner operators who are under its supervision to drop off their trailers containing shipments of waste water to Mat lack's Bensalem terminal. Those trailers arriving in Bensa lem are
not certified to haul waste water to their ultimate

2destinations in New Jersey. Local 312 employees are

responsible for obtaining the necessary health and safety certifications from Trenton, New Jersey and then ha uling the deposited trailers to environmental treatment f acilities in either Deepwater or Logan Township, New Jersey.

According to Article 50.1 of the parties' Collectiv e Bargaining Agreement, which is entitled "Work Preservation," Matlack is expressly prohibited from diverting or subcontracting to any other plants, bu sinesses or non-bargaining unit employees, or to any other m ode of operation, any of the hauling work that was then pe rformed or to be assigned to the bargaining unit. See Art. 50.1, App.
at 38.1

Sometime in April 1994, employees of Local 312 noti ced
that the number of trailer loads of waste water arr iving in the Bensalem terminal was decreasing markedly. Afte r making some inquiries, the employees were informed that many of Matlack's incoming waste water loads were b eing deposited at another terminal in Elkton, Maryland. Based on this information, on June 1, 1994, Union Preside nt Timothy Lehman filed a grievance letter with the Co mpany which constituted Step 1 of the grievance procedure s set

___________________________________________________ ______________

1. The provision reads in full:

Section 50.1 -- Work Preservation

For the purpose of preserving work and job opportun ities for the employees covered by this Agreement, the Employer a grees 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 subcontract ed, transferred, leased, diverted, assigned or conveyed in full or i n part (hereinafter referred to as "divert" or "subcontract"), by the E mployer to any other plant, business, person, or non-unit employee s, or to any other mode of operation, unless specifically provid ed and permitted in this Agreement.

In addition, the Employer agrees that it will not, as hereinafter set forth, subcontract or divert the work presently per formed by or hereafter assigned to, its employees to other busin ess entities owned and/or controlled by the Employer, or its parent, s ubsidiaries or
affiliates.

3out 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 s uch, request a meeting as scheduled at once to discuss.

App. at 41.

On August 9, 1994, Lehman met with Michael Lynch, t he Bensalem Terminal Manager, in accordance with Step 2 of the grievance procedures to discuss the grievance c ontained in the letter. At the meeting Lynch informed Lehman that

___________________________________________________ ______________

2. Section 7.2 of the Collective Bargaining Agreeme nt describes the Grievance Procedures in relevant part:

Step 1. All grievances must be made known in writin g to the other party within seven (7) working days after the reaso n for such grievance has occurred.

. . .

Step 2. If the disposition of the matter by the Ter minal Manager in charge, or his duly authorized representative, is n ot satisfactory, the matter must be taken up by the Business Agent, and the Employer's Regional Representative, or other representatives o f 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 Reg ional Representative or other representatives of the empl oyer with authority to act, is not satisfactory either party has the right to file its grievance with the Joint Committee. . . .

App. at 18.

4the waste water loads in question were originating from

locations in addition to those in Muscatine, Iowa o r other parts of the Northern Region. Lehman then made a handwritten amendment to the grievance letter indic ating that the grievance was meant to cover all allegedly diverted shipments ever assigned to the Bensalem terminal, n ot only those suspected to originate from Muscatine, Iowa o r"other parts of the Northern Region." App. at 41 ("Amended -- 8/9/94 -- 9:31 am -- To any waste water that came i nto 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 a t 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 th at any shipments coming from Muscatine or elsewhere ha d never been actually "assigned" to Bensalem as contemplated by the "Work Preservation" guarantee o f the CBA, but were part of "system-wide work" which coul d 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 o f wastewater shipments from locations such as Muscati ne, in the absence of company evidence to the contrary, sa tisfied the contractually required presumption that work is being diverted to other, non-bargaining units in violatio n 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 Loc al 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 mentio ned in the prior grievance proceedings: the first, a"timel iness" objection arguing that the Union's June 1, 1994 gri evance letter was filed after the seven day filing require ment set forth in the CBA; the second, an objection that the "scope" of the grievance contained in the letter was limite d to those allegedly improper shipments that originated out of

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

clause "or other parts of the Northern Region" or b y the
handwritten amendment. Matlack also announced that it was not prepared to address the substantive issue o f the grievance, namely whether there was an actual diver sion of shipments "assigned" to Bensalem bargaining unit employees in violation of Article 50. App. at 190-9 2, 197.

After Union counsel objected to Matlack's attempt t o 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 proc eed 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 unprepar ed 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 -- i n effect, as long as we're all here, let's go with the Muscat ine part of the substance." App at 201. He continued, "I will m ake . . . a determination on the scope of the issue prior to the holding of a second meeting, because that determina tion will determine whether or not the second day of hea ring 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 uni on 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'l l have to reconvene for the company to deal with thes e other issues. And if it means recalling theseparticular 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:

6I am more concerned that, in resolving this problem

,

it is resolved on a full factual record and, theref ore, if, in fact, the issue is determined to go beyond t he scope of Muscatine, Iowa, I'll permit the company t o address it at a subsequent time.

App. at 232-33. Thus, the arbitrator appears to hav e concluded that he would permit broad questioning of the witnesses on all the issues -- procedural and subst antive -- in order to create a full factual record, but th at 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 arbitr ator appeared to signal to the parties that he would onl y decide the procedural issues presented that day and that M atlack could address and brief the merits of the dispute a t a later date. The following colloquy occurred:

Mr. Peet [counsel for Matlack]: I would like to brief the is sue 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 f act, 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

7match 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 go ing 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 J une 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 ru led that the alleged amendment to the grievance was valid, t he Company would have the right to reopen the hearing for the purposes of further cross-examining the witnesses t he Union presented at the April 27th Hearing, and pres enting new evidence." App. at 49. In the Union's post-hear ing brief, the Union answered all the procedural object ions made by Matlack, and argued that the merits of the dispute
rendered Matlack in violation of Article 50 and als o that no additional hearing was necessary as Matlack never p rovided any evidence to rebut the established presumption o f diversion and would thus be estopped from presentin g such evidence in future proceeding. App. at 62-72.

8On 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 th e scope and timeliness of the grievance letter as well as o n the merits of the grievance. See App. at 89-99 (opinion, decision, and remedy of Arbitrator Long).3 He deci ded that the grievance letter was timely filed, that the han dwritten amendment to the amendment extended the scope of th e grievance to those loads originating in areas other than Muscatine, Iowa, and that Matlack violated Article 50 by diverting Muscatine loads from the Bensalem termina l. He awarded the Union back pay and remanded the matter to the Step 2 grievance procedure for disposition of t hose disputed shipments other than those from Muscatine.

On June 14, 1995 Matlack wrote to the arbitrator an d expressed "great shock" that the arbitrator had ren dered a decision on the merits of the grievance since all p arties to the hearing had understood that Matlack would have another opportunity to present evidence on that substantive issue. App. at 101. What followed was a flurry of correspondence between Matlack and the Union abo ut the propriety of the scope of the judgment and, ult imately, Arbitrator Long's decision to withdraw as arbitrato r. On July 17, 1995, Arbitrator Long sent the parties a l etter confirming his withdrawal. Again both parties sent letters disputing what was actually adjudged by the arbitra tor and
what remained to be decided.

___________________________________________________ ______________

3. In his written award, the arbitrator announced t hat he would be addressing the following issues:

1. Is the grievance of June 1, 1994, timely filed p ursuant to Article 7, section 7.2, of the collective bargaining agreem ent?

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 timely filed, has there
been a violation of Article 50 of the collective ba rgaining agreement, as alleged?

App. at 81.

9Arbitrator Long responded on July 31, 1995 in an

attempt to clarify where he believed the case curre ntly
stood:

My decision to withdraw from this matter concerned a misunderstanding concerning the procedure to be followed prior to a decision resolving the substant ive portion of the issue which is separate and unrelate d to that portion of the issue concerning the scope of t he grievance. Consistent with the record at the close of the hearing on April 27, 1995, it was my intent to leav e 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 b efore a
different arbitrator. The Union refused.

B.

District Court Procedure

On September 7, 1995, Local 312 filed a complaint i n 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 subs tantive portions. The parties filed cross-motions for summa ry judgment, submitting correspondence and deposition testimony from Arbitrator Long. Local 312 argued th at the June 13, 1995 decision was a final award and, under well established doctrine, was entitled to complete defe rence by the court. Matlack contended that the July 31, 1995 letter

10and the arbitrator's withdrawal clearly voided the

substantive portion of the award and entitled it to a new arbitration proceeding. Matlack filed the depositio n of Arbitrator Long, which contained the following test imony:

BY MR. MULLER [Counsel for the Union]:

Q: Mr. Long, at any time, did you communicate to ei ther Mr. Peet [counsel for Matlack] or myself, either ve rbally 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 abo ut his letter of July 31" and that it was "[f]aced with so me uncertainty as to what Arbitrator Long intended aft er issuing his June 13, 1995 award," and declined to g rant summary judgment on the submissions. Id. The court requested that Arbitrator Long testify at an eviden tiary 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 w ould not render a decision on the merits of the dispute and would permit Matlack to address that issue at a later dat e. Id. at
484. The court concluded that the ultimate award fo llowed from a fundamental procedural irregularity which ju stified vacating the tainted portion of the award and reman ding 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 cl arified the intended scope of the arbitration award. Second

, assuming the letter was properly considered, whethe r the

11district court had the legal power to vacate a port ion of the

award that resulted from the procedural irregularit y.

A.

Functus Officio Doctrine

Local 312 contends that according to the long-stand ing
doctrine of functus officio an arbitrator's power is exhausted immediately after s/he reaches a final decision, re gardless 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 submi tted, resolving both the procedural and substantive issue s in the Union's favor, must be final. We conclude, however, that because the arbitrator's letter merely related to t he procedural status, and did not attempt to alter the substance of his analysis, the letter was not prosc ribed 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 ar bitrator from in any way revising, re-examining, or suppleme nting his award. Glass, Molders, Pottery, Plastics and Al lied Workers Int'l Union v. Excelsior Foundry Co. , 56 F.3d 844, 846-47 (7th Cir. 1995); Colonial Penn Ins. Co. v. O maha
Indem. Co. , 943 F.2d 327, 331 (3d Cir. 1991). The rule provided simply that when "arbitrators have execute d 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 deriv es from a perception that arbitrators, unlike judges, are not institutionally sheltered from "the potential evil of outside communication" and are thus particularly susceptibl e to

___________________________________________________ ______________

4. Black's explains that the term is "[a]pplied to an officer whose term has expired and who has consequently no further off icial authority; and also to an instrument, power, agency, etc., which h as fulfilled the purpose of its creation, and is therefore of no fur ther virtue or effect." Black's Law Dictionary 673 (6th ed. 1990).

12various ex parte influences that might affect a con clusion.

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 c ase 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"i n the bad old days when judges were hostile to arbitration an d 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 limitati ons 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 f ederal 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 stric t 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 & Telegra ph Co.

, 628 F.2d 644, 647 (1st Cir. 1980) (considered doctr ine irrelevant in ordering resubmission of existing arb itration award to original arbitrators for amplification); E nterprise Wheel & Car Corp. v. United Steelworkers , 269 F.2d 327, 332 (4th Cir. 1959) (upholding resubmission of awar d to arbitrator because original hostility to arbitratio n 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 o f 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 v iable,

13particularly when the arbitrator is asked to recons ider or

amend the merits of an initial award, but listed th e doctrine's recognized limitations: "(1) an arbi tra tor can correct a mistake which is apparent on the face of his award; (2) where the award does not adjudicate an i ssue which has been submitted, then as to such issue the
arbitrator has not exhausted his function and it re mains open to him for subsequent determination; and (3) where the award, although seemingly complete, leaves doub t whether the submission has been fully executed, an ambiguity arises which the arbitrator is entitled t o 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 distribut ion of an award, or to change a party's expectations about it s rights and liabilities contained in an award. See, e.g. Co lonial

Penn , 943 F.2d at 332 (emphasizing need to prevent part ies from attempting to persuade arbitrators "to overtur n an adverse award"). Therefore, whether a case falls wi thin 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 fac e of the award, is designed for cases of clerical mistakes o r obvious errors of arithmatic computation. Id . In Colonial Penn we concluded that this exception did not apply to alle ged
mistakes where extraneous facts must be considered. Id

.

The rationale for the exception under category (2) above,
which authorizes an arbitrator to decide a remainin g issue which has been submitted by the parties but not res olved, is that the arbitration agreement between the parti es is still in force and the arbitrator's power over the remain der of the unresolved submission continues. Therefore,"the arbitrator is not exposed to any greater risk of im propriety than would normally exist during the pendency of th e arbitration proceedings." La Vale , 378 F.2d at 573.

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

(2). The arbitrator's July 31 letter did not purpor t to correct any mistakes appearing on the face of the arbitrati on award nor did the arbitrator leave undecided a particular issue submitted by the parties. If anything, Arbitrator L ong 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 prohib it arbitrators from re-examining awards "for there is no opportunity for redetermination on the merits of wh at 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 clarificat ion is permissible. The award had been in favor of a contr actor, 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 Noon an a deposit of approximately $56,000 during the pendenc y of the proceeding. Noonan contended that the arbitrati on panel had recognized that the $56,000 represented a partial payment on account and that the $31,000 award was t hus meant to be supplemental.

We upheld the district court's resubmission of the issue to the arbitration panel for clarification as to wh ether the sum of $56,000 was a deposit or a payment on accoun t. Id. at 573. In light of the policies underlying the fun ctus 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 "arbitr ator issued a second award fundamentally inconsistent wi th 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 "no t for the

purpose of relitigating or modifying the award"); 4 2 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 decis ion 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 distr ict court's consideration of arbitral post-award comment.

In a series of cases from various circuits, the cou rts have considered supplementary information from the arbit rator that addressed a fundamental procedural irregularit y. 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 ga p in the system of arbitral justice that would make very lit tle sense." 56 F.3d at 847 (post award, ex parte communications between union and arbitrator permissible and bindin g 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 t he parties if they wished to discuss his decision. After all t he 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 d raft. The court of appeals held that, despite the status of t he affidavit as a "post-award comment," the district court shoul d have considered the paragraph of the affidavit that stat ed that the arbitrator had informed the parties at the init ial hearing that the first award would be only preliminary and open for

16reconsideration. 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 t old the parties he would follow." Id . at 1395-96. Accordingly, the court directed the district court to examine that p ortion of
the affidavit as well as "all other evidence -- inc luding the testimony of persons who were present at the initia l 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 preliminar y 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 sub mitted the employee's relevant medical records but provide d no copy to Ideal. The arbitrator issued a final award in favor of the Union, but attached a cover letter explaining t hat he had in fact finalized the award prior to receiving the Union's ex parte communication, and that the information di d not influence his judgment. Nevertheless, in order to a void even the appearance of impropriety, the arbitrator offer ed 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 a ward. Id

.

The Tenth Circuit affirmed the district court's ref usal to enforce the award. The court of appeals described t he arbitrator's offer to void his decision as a "proce dural event" entitled to heightened deference from federal court s. Id . at 841. The court endorsed the arbitrator's actions, s uggesting that "[t]o avoid the appearance of impropriety he c hose to utilize a procedural device not unlike the remittit ur/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 wou ld not be decided without further evidence and briefing, c ausing a fundamental procedural irregularity. It might have been

17possible to determine the existence of this irregul arity from

the tapes of the arbitration hearing without the Ju ly 31 letter as they evidence at least some difference be tween what the parties were told at the time and what the arbitrator did, but the parties agree that the tape s, which were unofficial, were inaudible in parts and incomp lete. Under these circumstances, it was not improper for the arbitrator to issue the letter of July 31 clarifyin g his "misunderstanding concerning the procedure to be fo llowed prior to a decision resolving the substantive porti on 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 w hich "outlin[ed] his procedural decision." 762 F.2d at 8 42. As the court concluded in that case, "[t]hat the arbitrato r chose to use such a procedure to protect the integrity of th e arbitration process should not be subject to judici al second guessing." Id. at 841.

B.

Vacation of the Award

In the posture in which this matter was first prese nted to the district court by Local 312's suit for enforcem ent of the arbitration award, the arbitrator had already withd rawn, returned Matlack's arbitration file, and written th e July 31 letter which set forth the scope of the award itsel f. That letter clarifies that there had been two questions presented for arbitration -- the first being the procedural q uestion as to whether the Union's grievance of June 1, 1994 ha d 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 substantiv e issue
as to whether Matlack had violated the collective b argaining 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 t he 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 proced ure the

18arbitrator had intended to follow. The district cou rt

explained that it "simply sought to find out what t he
arbitrator said at the April 27 arbitration hearing concerning the procedure he intended to follow." Ma tlack,

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 per mitted to write post-award letter and testify at trial in order to clarify decision), calling upon the arbitrator to t estify as to his or her intentions is questionable in light of the wellestablished principle that it is not the province o f 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 w ritten 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 t estimony.

Consistent with the July 31 letter, the district co urt
determined that the arbitrator had indicated to the parties that he would only reach a decision on the timeline ss and scope issues and reserve a decision on the merits o f the Union's grievance until after Matlack had an opport unity to address that issue. Based on that determination, th e 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. Unite d Parcel Service, Inc. v. Int'l Bhd. of Teamsters Loc al No. 430

, 55 F.3d 138, 140 (3d Cir. 1995). We conclude that b ecause the record of the arbitration proceedings as well a s the arbitrator's July 31 letter confirming the intended scope of
the arbitration award established that there was a fundamental procedural irregularity in the arbitrat ion proceeding, the district court had authority to vac ate 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 t he merits is inconsistent with the long line of case law firm ly establishing the limitations on judicial interventi on in

19arbitration 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 c ourt is "convinced [that the arbitrator] committed serious error"); News America Publications, Inc. v. Newark Typograph ical 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 re view of arbitration awards is inapposite here because the d istrict court did not purport to revisit, reinterpret, or o verrule the arbitrator's legal or factual analysis. The correct ness of the
arbitrator's substantive conclusion was not under s crutiny.

At common law, an arbitration award may be set asid e where there is an adequate showing of "[f]raud, par tiality, misconduct, violation of a specific command of law, or vagueness rendering enforcement impractical, or a s howing that enforcement would be contrary to public policy ." Local 863 Int'l Bhd. of Teamsters v. Jersey Coast Egg Pro ducers,

Inc. , 773 F.2d 530, 534 (3d Cir. 1985) (internal citati ons 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 o f an
arbitral award." International Bhd. of Elec. Worker s, 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 mer ited district court suspension of arbitration awards are varied.
See Textile Workers Union of America v. American Th read
Co. , 291 F.2d 894, 901 (4th Cir. 1961) (affirming deni al 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 givin g parties warning about application of evidentiary rules); El ectrical
Workers , 615 F.Supp. at 67-68 (vacating arbitration board

20award and remanding because neutral arbitrator rend ered

decision without obtaining the signatures of the pa rtisan 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 purs uant to their collective bargaining agreement, and the Fede ral Arbitration Act, 9 U.S.C. § 10 (1995), is not bindi ng. Nevertheless, to the extent that the Act imposes co nstraints on judicial review of arbitration awards similar to those in the labor context, its provisions are instructive h ere. Section 10(a)(3) of the Act (formerly 10(c)) allows a court to vacate an arbitration award "[w]here the arbitrator s were guilty of . . . any . . . misbehavior by which the rights of any party have been prejudiced." Pursuant to this provi sion, we have held that a court has the power to vacate an arbitration award where an arbitrator receives ex p arte 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 A ct, we
also have allowed a court to vacate an arbitration award if the arbitrator's refusal to hear proffered testimon y "so affects the rights of a party that it may be said t hat he was deprived of a fair hearing." Newark Stereotypers' U nion 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 a n award if a party to an arbitration proceeding has not bee n given notice and opportunity to present arguments and evi dence 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'Affrete ment

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

The National Labor Relations Board has itself impos ed minimum due process standards in evaluating the fai rness of arbitration proceedings resolving unfair labor p ractice issues. Spielberg Manufacturing Company , 112 NLRB 1080 (1955). Thus, it has refused to defer to an arbitra tor's decision where evidence was deliberately withheld f rom an arbitrator, Precision Fittings , 141 NLRB 1034, 1041-43

21(1963), where the grievant was given insufficient t ime 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 arbit rator made a fundamental procedural error in deciding the merits of the controversy after advising the partie s that he would not do so until after he decided the procedur al issues and until Matlack had an opportunity to present its case on the merits. In the district court's words, the arbi trator simply "told the parties one thing and, albeit mist akenly, 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 no tice and opportunity to be heard in such an adversarial proc eeding.
See Konkar Maritime Enters. , 668 F.Supp. at 271. This is precisely the type of procedural error that "underm ine[s] the validity of the arbitration process," Gorman, L abor Law 602, permits an arbitrator to take remedial measure s such as withdrawal, and authorizes a district court to v acate and
remand an arbitration award.

III.

We conclude that the functus officio doctrine did not proscribe the district court from examining the arb itrator's post award letter which purported to clarify the in tended scope of the award, and that the arbitrator's award was partially the product of a fundamental procedural irregularity. Accordingly, we will affirm the distr ict court's decision to vacate the substantive portion of the a ward and to remand the remainder of the proceedings to anoth er arbitrator.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

22