United Food & Commercial Workers Union, Local 1119, Afl-Cio, Plaintiff/counter v. United Markets, Inc., Defendant/counter-Plaintiff/appellant

784 F.2d 1413 121 L.R.R.M. (BNA) 3338 , 104 Lab.Cas. P 11,878 UNITED FOOD & COMMERCIAL WORKERS UNION, LOCAL 1119, AFL-CIO, Plaintiff/Counter- Defendant/Appellee, v. UNITED MARKETS, INC., Defendant/Counter-Plaintiff/Appellant. No. 84-2647. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 15, 1985. Decided March 18, 1986. McLaughlin & Irvin, Patrick W. Jordan, David Miller, San Francisco, Cal., for defendant/counter-plaintiff/appellant. Appeal from the United States District Court for the Northern District of California. Before SNEED, KENNEDY, and BOOCHEVER, Circuit Judges. SNEED, Circuit Judge: 1 United Markets, Inc., appeals from the district court's order vacating an arbitration award and denying United the use of the General Clerk classification in its San Anselmo store. We affirm the district court. I. FACTS AND PROCEEDINGS BELOW 2 Appellant United Markets (United) sells groceries and related products in San Anselmo and San Rafael. Appellee United Food & Commercial Workers Union (Union) represents the retail clerks in the two stores. In a memorandum agreement due to expire on February 28, 1986, the two parties agreed that 3 1. If the Employer…

United Markets, Inc., appeals from the district court’s order vacating an arbitration award and denying United the use of the General Clerk classification in its San Anselmo store. We affirm the district court.

I.

FACTS AND PROCEEDINGS BELOW Appellant United Markets (United) sells groceries and related products in San Anselmo and San Rafael. Appellee United Food & Commercial Workers Union (Union) represents the retail clerks in the two stores. In a memorandum agreement due to expire on February 28, 1986, the two parties agreed that

(Italics added.) The memorandum agreement also provided that the arbitration provisions of the main Food Industry Agreement would “remain unchanged.” Section 18.6 of the Food Industry Agreement stated that “[t]he arbitrator shall not have the right to alter, amend, delete or add to any of the terms of this agreement.”

On December 7 and December 21, 1983, United violated the memorandum agreement at the San Anselmo store by using three General Clerks at one time (the overlap). Each overlap lasted approximately two hours. United attempted to make amends by paying the Senior General Clerk at the second step of the Apprentice Food Clerk rate for the…

dissenting:

This case presents a classic example of the role an arbitrator should, indeed must, assume when abstract provisions of a collective bargaining agreement come to bear upon the realities of the industrial process. It is unfortunate that my respected colleagues do not seize upon the opportunity *1417 to demonstrate the arbitration system working at its best, rather than concluding the arbitrator departed so far from the norm that reversal is required.

It is apparent the arbitrator found no substantial breach, no substantial violation, of the contract and designed a remedy accordingly. The workers in question were made whole from a monetary standpoint, the company being penalized for its inadvertent error; and the structure of the wage agreement that had been bargained for was left in place, with a warning to the company that it would surrender its advantages if a subsequent violation occurred. The court substitutes its own judgment and finds the company forfeited the wage classification when by inadvertence a two-hour overlap occurred but twice, once when a crew was called in early and once because of a scheduling error. That is a wooden interpretation of the contract..…