Hastie, Chief Judge, and Freedman and Van Dusen, Circuit Judges.
The plaintiff union appeals from the district court's confirmation of an arbitration award.
The arbitration decided a dispute concerning the number of men required for the safe and efficient operation of a new M.A.N.*fn1 stereotype plate-casting machine which defendant, Newark Morning Ledger Company, the publisher of the Newark Star-Ledger newspaper, was installing in its plant. The union represents the operators of the machine under a collective bargaining agreement with the Newark Newspaper Publishers Association, also named as a defendant, as the agent of the Newark Morning Ledger Company.
Discussions between representatives of the union and the Ledger Company regarding the dispute failed to achieve agreement. The company insisted that the machine could be operated safely and efficiently by one man, while the union argued that at least two were necessary. Pursuant to the collective bargaining agreement each party appointed two representatives, and when these four were unable to resolve the dispute by a majority decision there came into operation a provision of the agreement for a binding arbitration after they had selected a neutral fifth member, who was to serve as chairman. They were unable, however, to agree on the selection of the fifth member and the union filed a complaint in the district court to compel arbitration. Jurisdiction was based on § 301 of the Labor Management Relations Act (29 U.S.C. § 185), and the complaint sought relief under § 5 of the United States Arbitration Act (9 U.S.C. § 5), which provides the federal law applicable to the dispute.*fn2 The district court ordered arbitration and named the neutral member of the arbitration panel.*fn3
The arbitration panel heard testimony for six weeks and ultimately rendered an award upholding the company's right to employ a single operator on the machine. The two members designated by the union dissented. The majority found, on ample evidence to support its conclusion, that the latest model of the M.A.N. machine was a "fully automated one-man mechanical contrivance tried and proved by operative experience", which "had unquestioned success throughout the United States." The award was attacked by the union in a motion to vacate under § 10 of the United States Arbitration Act (9 U.S.C. § 10) and the company moved to confirm. After consideration of affidavits and oral argument by both parties the district court confirmed the award. 261 F. Supp. 832 (D.N.J. 1967).
The union challenges the award on the ground that the arbitration panel refused to consider its claim that the company had intimidated and silenced its expert witness, Pezdirtz, whom it had called to testify regarding the construction of the M.A.N. machine and the number of men required for its safe and efficient operation. Pezdirtz had formerly been employed by the exclusive American distributor for the German manufacturer of the M.A.N. machine and therefore was familiar with it. Immediately prior to his appearance before the arbitration panel he had been employed by Wood Newspaper Machinery Corp., the manufacturer of a competing machine. The union had arranged with Wood that Pezdirtz should be taken off Wood's payroll for what was termed a leave of absence while he testified before the arbitration panel. The union paid his traveling expenses, maintenance and the earnings he would have received from Wood during the period of his service as a witness.*fn4 Pezdirtz appeared as a witness on January 12, 1966. He testified at length that day regarding the M.A.N. machine until at the suggestion of the chairman the panel recessed to permit Pezdirtz to inspect the machine at the Star-Ledger plant. When the sessions resumed next morning Pezdirtz refused to testify further and when pressed for the reason said that it was a personal one.
At this point the union's counsel suggested to the arbitration panel that Pezdirtz's refusal to testify was the result of improper conduct by officials of the Ledger Company and asked that the panel investigate whether a contempt had been committed against it and whether any outside influence was frustrating its function. The panel denied both requests and declared that if the union insisted on the testimony of Pezdirtz and he still refused to give it the appropriate procedure would be to apply to the district judge for an order directing him to resume his testimony. The panel recessed to enable the union to apply to the district judge for relief. The district judge, after an informal hearing in chambers announced that he was without jurisdiction to act during the pendency of the arbitration. The parties thereupon returned to the arbitration panel which at the union's request issued subpoenas to Pezdirtz, two executives of Wood and the principal stockholder of the Ledger Company. Only the subpoena directed to Pezdirtz was served.
Next day Pezdirtz appeared pursuant to the subpoena and again refused to testify or to give any reason for his refusal. The arbitration panel again declined to inquire into the reasons for Pezdirtz's refusal or to accept offers of proof with regard to it, ruling the entire matter irrelevant to the issues presented for arbitration. Upon the requests of Pezdirtz and the union the panel recessed for four days to allow Pezdirtz to consult with his personal counsel and to afford the union an opportunity to have two other expert witnesses examine the machine at the Star-Ledger plant.
Upon resumption of the proceedings on January 19, Pezdirtz appeared with his personal counsel who stated that Pezdirtz was now willing to testify. The union's counsel, however, refused to proceed with Pezdirtz unless he was first permitted to inquire into the reasons for Pezdirtz's original change of mind, and to enter into an investigation of it. He also claimed that Pezdirtz had not yet examined the machine as the panel had directed and therefore would be incompetent to testify regarding it. He therefore refused to put any questions to Pezdirtz on the ground that he was "a spoiled witness, and the quicker he is disposed of the better." When the panel asked if counsel would object if the committee discharged the witness he replied that he neither objected nor consented, but stood mute. The panel thereupon excused Pezdirtz. The hearings continued through February 18, and the panel heard many other witnesses, including the two additional expert witnesses for the union who had examined the M.A.N. machine at the Star-Ledger plant.
After the panel made its award on June 30, the union filed a motion to vacate and reiterated its demand for an investigation of its charges that officials of the Ledger Company had conspired with Wood to stifle Pezdirtz's testimony. It submitted affidavits setting out the substance of these claims which were challenged by affidavits filed on behalf of the company. The opposing affidavits are in agreement that the purchasing agent and principal stockholder of the newspaper chain of which the Star-Ledger is a member had telephoned Wood and that Wood in turn had called Pezdirtz. The union's affidavits claimed that the Ledger Company's officials threatened to cease doing business with Wood if Pezdirtz went on with his testimony. The Company's affidavits denied that it made any threats of reprisal and claimed that the purpose in calling Wood was to inquire into Pezdirtz's current employment status in light of his disingenuous testimony that he was currently unemployed, and upon clarification to use the information in cross-examining him. The district court held that the union's allegations were insufficient to justify vacation of the award, that the union had not been deprived of a fair hearing before the arbitration panel, and that it could not complain of the loss of Pezdirtz's testimony because it had itself rejected his subsequent offer to complete his testimony.
The United States Arbitration Act, which is based on the pioneering New York Arbitration Act,*fn5 and is substantially similar to the Uniform Arbitration Act,*fn6 has significantly altered the general common law principle that arbitrators are the sole judges of the case on the facts and the law,*fn7 by authorizing the vacation of an award on specified grounds. Section 10 empowers the federal courts to vacate an arbitration award:
"(a) Where the award was procured by corruption, fraud, or undue means.
"(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which ...