in the arbitrators, or either of them", and 9 U.S.C. Section 10 (d) which permits the court to vacate an arbitration award ". . . where the arbitrators exceeded their powers . . .". Additionally, plaintiffs allege that the arbitrator's decision was clearly contrary to the common law of the shop and to the weight of authority and should, therefore, be vacated.
Plaintiffs' first contention is that the arbitrator evidenced a definite partiality towards the Union within the meaning of 9 U.S.C. Section 10(b). In support of their claim of partiality, the plaintiffs allege that the arbitrator, "displayed a flagrant inattentiveness to the facts" and failed to require the Union to meet the burden of proof necessary to sustain its position.
Courts have found "evident partiality or corruption" within the meaning of Section 10(b) in cases where there were undisclosed business dealings between the arbitrator and a party to the arbitration. A leading case on this point is Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 21 L. Ed. 2d 301, 89 S. Ct. 337 (1968), reh. den. 393 U.S. 1112, 21 L. Ed. 2d 812, 89 S. Ct. 848. Courts have also found partiality where the arbitrator had either a personal or business interest in the outcome of the proceedings, or where a relationship, other than a business relationship, existed between the arbitrator and a party to the arbitration. See Hyman v. Pottberg's Exrs., 101 F.2d 262 (2d Cir. 1939).
In other words, when a claim of partiality is made ". . . the court must ascertain from such record as is available whether the arbitrator's conduct was so biased and prejudiced as to destroy fundamental fairness . . .", Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F. Supp. 549, 551-552 (S.D.N.Y. 1968); see also, Ballantine Books, Inc. v. Capital Distributing Co., 302 F.2d 17 (2d Cir. 1962); Newark Stereotypers' Union v. Newark Morning Ledger Co., 397 F.2d 594 (3d Cir. 1968), cert. denied 393 U.S. 954, 21 L. Ed. 2d 365, 89 S. Ct. 378 (1968); In re Compudyne Corp., 255 F. Supp. 1004 (E.D.Pa. 1966); Transport Workers Union v. Philadelphia Transp. Co., 283 F. Supp. 597 (E.D.Pa. 1968); Shopping Cart, Inc. v. Amalgamated Food Employees, 350 F. Supp. 1221 (E.D.Pa. 1972). Something more than "mere error in the law or failure on the part of the arbitrators to understand or apply the law" must be shown by the party alleging partiality. Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577, 582 (2d Cir. 1967); Catz American Co. v. Pearl Grange Fruit Exchange, Inc., supra ; San Martine Compania de Navegacion, S.A. v. Saguenay Terminals, Ltd., 293 F.2d 796 (9th Cir. 1961). The record in the case here is devoid of any indicia of "evident partiality or corruption" requiring vacation of the award. Cities Service Oil Co. v. American Mineral Spirits Co., 22 F. Supp. 373 (S.D.N.Y. 1937); Stef Shipping Corp. v. Norris Grain Co., 209 F. Supp. 249 (S.D.N.Y. 1962); Fukaya Trading Co., S.A. v. Eastern Marine Corp., 322 F. Supp. 278 (E.D.La. 1971).
Plaintiffs next argue that the arbitrator exceeded his powers within the meaning of 9 U.S.C. Section 10(d). Usually, the courts, in considering the applicability of this objection to an award, have examined the arbitration agreement or other documents through which the parties agreed to arbitrate and have compared such agreement with the decision rendered. Ordinarily the complaining party must show that the arbitrator's award is contrary to the express language of the collective bargaining agreement, Amanda Bent Bolt Co. v. International U., U.A., A., A.T.W., 451 F.2d 1277, (6th Cir. 1971); Riko Enterprises, Inc. v. Seattle Supersonics Corp., 357 F. Supp. 521 (S.D.N.Y. 1973); Timken Co. v. Local U. No. 1123, United Steelworkers of America, 482 F.2d 1012 (6th Cir. 1972); or that the arbitrator's award went beyond the issues submitted to him,
Orion Shipping and Trading Co. v. Eastern States Petroleum Corp., 312 F.2d 299 (2d Cir. 1963); Western Canada S.S. Co. v. Cia De Nav. San Leonardo, 105 F. Supp. 452 (S.D.N.Y. 1952); or that the arbitrator had no power to grant a particular remedy. See, Structural Steel & Ornamental Iron Assoc. v. Shopmen's Local Union etc., 478 F.2d 848 (3d Cir. 1973); Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125 (3d Cir. 1972); South East Atlantic Shipping, Ltd. v. Garnac Grain Co., 356 F.2d 189 (2d Cir. 1966).
An analysis of the stipulated issue submitted to the arbitrator,
and the arbitrator's opinion and award reveals that the arbitrator decided the precise issue presented to him
and mandated a remedy which not only was within his power, but, in fact, had been stipulated to by the parties. Therefore, if the plaintiffs are to prevail they must demonstrate that the arbitrator's award is contrary to the express language of the collective bargaining agreement or that the arbitrator, instead of merely interpreting the collective bargaining agreement, added terms to the agreement.
In this regard, plaintiffs contend that the arbitrator's award added to the agreement a "guaranteed overtime clause" and a "past practice clause" contrary to the manifest intention of the parties. Plaintiffs further contend that the arbitrator's award completely nullifies the express language of Article 21 -- Rights of Management
-- by limiting the company's right to run its business in the most efficient manner possible.
The approach courts are to follow in disputes arising under labor contracts containing arbitration clauses is outlined in the Steelworkers Triology: United Steelworkers v. American Mfg. Co., 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960) (American); United Steelworkers v. Warrior and Gulf Co., 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960) (Warrior and Gulf); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960) (Enterprise).
In the latter decision the Supreme Court commented on the scope and limits of judicial review of an arbitrator's award (at 596):
"The refusal of the courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards."