Howard P. Foley Company, Petitioner/cross-Respondent/appellee v. International Brotherhood of Electrical Workers, Local 639, Respondent/cross

789 F.2d 1421 122 L.R.R.M. (BNA) 2471 , 55 USLW 2023 , 104 Lab.Cas. P 11,964 HOWARD P. FOLEY COMPANY, Petitioner/Cross-Respondent/Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 639, Respondent/Cross- Petitioner/Appellant. No. 85-5635. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 3, 1985. Decided May 20, 1986. Eugene Miller, Miller & Sincoff, Seaside, Cal., for petitioner/cross-respondent/appellee. Gary P. Scholick, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for respondent/cross-petitioner/appellant. Appeal from the United States District Court for the Central District of California. Before WALLACE, ANDERSON, and NORRIS, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 International Brotherhood of Electrical Workers, Local 639 (the Union) appeals the decision of the district court which granted Howard P. Foley Company's (Foley) motion for summary judgment to vacate a portion of an arbitration award and which denied the Union's motion for summary judgment to confirm the arbitration award. Specifically, the district court vacated that portion of the arbitration award which awarded back pay to a terminated…

dissenting:

I dissent because I believe that the arbitrator’s award “[drew] its essence from the collective bargaining agreement.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 , 80 S.Ct. 1358, 1361 , 4 L.Ed.2d 1424 (1960). The basis of the award is that Foley discharged Thomas without questioning PG & E’s decision to exclude him from the jobsite as a security risk. The arbitrator could rationally have read into the just cause clause an implied covenant of good faith and fair dealing. Such an interpretation would hardly be novel. See, e.g., Seaman’s Direct Buying Service, Inc. v. Standard Oil Co., 36 Cal.3d 752 , 206 Cal.Rptr. 354, 362 , 686 P.2d 1158, 1166 (1984) (a covenant of good faith and fair dealing is implied “in every contract.”) (emphasis in original). It would have been a simple matter for Foley to have tested the strength of PG & E’s claim that Thomas was a security risk. For example, Foley could have interviewed Thomas and discussed his side of the story with PG & E. I recognize that Foley may have struck out in any effort to persuade PG & E to lift its ban of Thomas, but that’s not the point. The point is that Foley did nothing to…

International Brotherhood of Electrical Workers, Local 639 (the Union) appeals the decision of the district court which granted Howard P. Foley Company’s (Foley) motion for summary judgment to vacate a portion of an arbitration award and which denied the Union’s motion for summary judgment to confirm the arbitration award. Specifically, the district court vacated that portion of the arbitration award which awarded back pay to a terminated employee. We affirm.

FACTS

This case involves a back pay award given by an arbitrator pursuant to a collective bargaining agreement (CBA) between Foley and the Union. The labor contract relates exclusively to one jobsite located at Diablo Canyon Nuclear Power Plant. The Plant is owned , and controlled by Pacific Gas & Electric (PG & E). Access to and from the jobsite is controlled exclusively by PG & E. All employees of Foley are subject to the security requirements of PG & E.

On December 6, 1983, Foley’s Project Manager attended a meeting at PG & E’s offices and learned that PG & E had just completed a six-month undercover drug investigation. The Project Manager received a list of employees with whom PG & E wished to speak. One name on that…