Unpublished Dispositionschneider Services International, Inc., Plaintiff-appellee, v. Air Engineering Metal Trades Council and Affiliated Unions,afl-cio, Defendants-appellants, 848 F.2d 193 (6th Cir. 1988)

In this action under 29 U.S.C. § 1985 and 9 U.S.C. § 10(d) to set aside a labor arbitration award arising from the termination of an employee by plaintiff-appellee, the Court has carefully reviewed and discussed the briefs of the parties and the record in the case. We have analyzed the arbitrator's decision and District Judge Jarvis' opinion. We conclude that Judge Jarvis was correct for the reasons set out in his carefully reasoned opinion.

The arbitrator apparently did not consider, and did not discuss, the provision of Section 5 of Article III of the collective bargaining agreement which prohibits the arbitrator from "bas [ing] a decision on any past practice which is inconsistent" with the agreement. The Arbitrator based her decision on instances of leniency in the past and substituted her judgment for the company's judgment about job qualifications concerning physical strength and location of work. The District Court correctly held that the Arbitrator did not follow the agreement.

We are not inclined to remand the case to the arbitrator for consideration of Section 5 of Article III. Appellant did not suggest this course to the District Court or to this court in its brief. It only made this suggestion at oral argument when it was pointed out that neither the arbitrator nor the appellant had addressed Section 5 and that the arbitrator, as pointed out by Judge Jarvis, had based her decision without explanation on past instances of leniency in apparent violation of the terms of Section 5.

Accordingly, the judgment of the District Court is affirmed.