with this, the Court must also examine the record of the arbitration proceedings to determine if the evidence adduced by each of the parties reflects common accord and understanding of the particularly defined grievance which the arbitrator deemed in his opinion to be the matter in issue. Disappointment with the result plus afterthought of a more narrow grievance that could have been presented is of no consequence. Defendant, in framing the issue of grievance and at the hearing thereon, could have limited it to the narrow question it now urges if it had desired to do so.
Defendant was aware of the fact that Bateman's employment was terminated because of his impairment of hearing 'which makes it unsafe for both himself and his fellow employees to continue working in his occupation in our ship yard.' The overall tenor of the evidence adduced at hearing related to a discharge because of the environmental element of noise prevalent in ship yard operations. It was developed at that hearing that Bateman had done practically every type of job in a ship yard so that his occupation was more in the nature of a ship yard worker than that of an employee particularly assigned to one specified class of work. The arbitrator in his opinion refers to the issue developed at hearing as one of whether the company had good and substantial cause to discharge Mr. Gateman. He concludes, 'The fact that Mr. Bateman's discharge was in accord with Dr. Pflug's opinion was confirmed at the hearing when Dr. Pflug took the stand to give the opinion that Mr. Bateman's discharge was medically indicated.' Dr. Pflug was the plaintiff's physician and he fixed a range of up to 18% Binaural loss of hearing as non-hazardous. The employment of those having binaural loss of hearing in excess of 18% Was not recommended. Bateman's impairment of hearing was in excess of 18%.
Article XI, Section 1
of the labor agreement imposes upon plaintiff the obligation to maintain safe and healthful working conditions. Article XI, Section 7 of the agreement provides for transfers of employees suffering from disability only 'in so far as * * * operations permit.' The arbitration clause
conferring decisional authority on the arbitrator is broad in scope and it cannot be said here that the result reached constituted an abuse of the discretion entrusted to him by the parties.
As indicated, defendant contends that the instant grievance is a new and different grievance than the one previously submitted to arbitration. This Court cannot agree. The substance of the first grievance involved the right of Bateman to be employed at the Hoboken yard of plaintiff. This encompassed a right to be continued on the payroll regardless of the particular work to which he might be assigned. The arbitrator, construing the application of the pertinent portions of the labor agreement, concluded that plaintiff had a right to terminate Bateman's employment when the action taken was in accordance with the standard of health and safety fixed by plaintiff's physician.
Ordinarily, where there is a broad arbitration clause as here, a grievance which arguably comes within the clause should be submitted to arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). There is no dispute that, absent the first award, arbitration would clearly be required. Instead, the Court is faced with the problem of determining the effect of a previous award on the arbitrability of a subsequent grievance. Counterbalancing the liberal policy favoring arbitration is the policy favoring finality of arbitration awards. The harmony sought by arbitration as a substitute for work stoppage and elimination of industrial strife between labor and management could be jeopardized if repetitive submission to arbitration of the same grievance was permitted. Unless there is finality to an arbitration award as contemplated by the parties, there would be no inducement to accept a provision for arbitration in the labor agreement.
It is suggested by defendant that it is not within the jurisdiction of this Court to determine that the previous award in arbitration is res adjudicata. Defendant argues that res adjudicata is a defense on the merits and one for an arbitrator to determine on hearing of the instant grievance. In conjunction with this, it was also suggested that instead of construing the effect of the arbitration award by Davis, the Court remand to him to 'rewrite it within limits to be indicated by the Court's judgment.'
(Emphasis supplied.) Further, it should be noted that defendant seeks to invoke arbitration of its instant grievance by a three-member arbitration board.
The contention that res adjudicata is a defense on the merits would be persuasive in a situation where in the application of the doctrine it is necessary to resolve a genuine issue of material fact. Such is not the case here. The opinion of Arbitrator Davis is clear and unambiguous, precisely covering the subject matter of the grievance presented by defendant, i.e., Bateman's discharge from employment with plaintiff at its Hoboken yard. An award of an arbitrator acting within the scope of his authority has the effect of a judgment and is conclusive as to all matters submitted for decision at the instance of the parties. Panza v. Armco Steel Corp., 316 F.2d 69 (3rd Cir. 1963); See 5 Am.Jur.2d, Arbitration and Award, § 147. Moreover, finality of disposition of a grievance by arbitration is what the parties here contemplated by express provision in the labor agreement.
Summarized, defendant urges on the one hand by way of relief sought that the Court adjudicate its second grievance as arbitrable and disassociate it entirely from its previous grievance. But it recognizes that the decision of the arbitrator disposing of the first grievance might very well be construed as dispositive of the second grievance. Therefore, defendant urges in the alternate that the Court modify the effect of the decision made by the arbitrator or remand to him with direction to rewrite it.
Consonant with the limitation on the power of the Court to interfere with any determination of the arbitrator reasonably reached on the merits of a grievance, remand to the arbitrator is appropriate where there is reasonable ground for disagreement as to what he actually did decide. See International Association of Machinists, etc. v. Crown Cork and Seal Co., 300 F.2d 127 (3rd Cir. 1962); Transport Workers Union of Phila., Local 234 v. Philadelphia Transportation Company, 228 F.Supp. 423 (E.D.Pa. 1964). But the power to remand should not be exercised unless there is patent ambiguity in the decision of the arbitrator or the text of it is not germane to the issue presented as reflected by the record of the proceedings before him. To remand under any other circumstances would be to suggest to the arbitrator that the Court differed in opinion with the result on the merits which had been reached by the arbitrator and would constitute an intrusion upon his exclusive function to pass upon the merits of the grievance.
There is no basis upon which this Court can reasonably conclude that the decision of the arbitrator is ambiguous or that it constitutes a determination which went beyond and covered matter not encompassed within the issue of the particular grievance presented by defendant. Accordingly, the award of the arbitrator as written holding that plaintiff had a right to discharge Bateman will be enforced and the counterclaim of defendant dismissed.
An appropriate order for entry of judgment in favor of plaintiff and against defendant consistent herewith will be presented.