Opinion
No. CIV 01-1456-PHX-MHM.
February 12, 2003.
ORDER
Pending before the Court are Plaintiff/Counterdefendant's Motion for Summary Judgment (Dkt. #32) and Defendants/Counterclaimants' Motion for Summary Judgment (Dkt. # 29). Having reviewed the parties' pleadings, and heard oral argument on February 4, 2003, the Court issues this Order.
I. Factual Background
This action was brought by Peabody Western Coal Co. ("Peabody") to vacate a letter award dated May 8, 2001, by Arbitrator Joseph S. Cannavo Jr. ("Arbitrator"), on the ground that the letter award went beyond the scope of the Arbitrator's authority, and was contrary to the plain language and meaning of the governing collective bargaining agreement, the Western Surface Agreement of 1992, as amended in 1996 (the "1996 Wage Agreement").
District 22 of the United Mine Workers of America (the "Union") Union counterclaims, seeking enforcement of the May 8, 2001, letter award, on the ground the arbitrator properly exercised his authority to clarify the original April 2, 2000 Arbitration Award, based on his hearing of the Union's February 9, 1999, class-action grievance.
Peabody and the Union have filed cross-motions for summary judgment seeking a ruling from this Court based on the record developed below, and additional affidavits submitted by the parties.
A. The 1996 Wage Agreement
Pursuant to the 1996 Wage Agreement, Peabody was required to designate a parking area as close as practicable to the work site, where each employee would have the opportunity to be transported to the work site. Peabody was required to provide transportation for surface mine crews and maintenance employees from the parking area to the work site and back. The agreement further provided:
Employees will be required to be at the parking areas at least fifteen (15) minutes before their regular starting times . . .
Article XVIII(a) of 1996 Wage Agreement, Ex. B to Plaintiff/Counterdefendant's Statement of Uncontested Material Facts ("PSOF").
B. The Grievance
On February 1, 1999, the Union filed a grievance alleging that Peabody had violated the 1996 Agreement by instituting a new practice related to the employees' duty to report to the parking lots. The Union specifically styled the grievance as a "class action" on behalf of all represented employees, and outlined the grievance as follows:
Management violated the 1996 Wage Agreement by instituting a new starting and quitting time.
We request to be made whole for all lost wages and benefits.
Ex. A to PSOF.
C. The Arbitration Hearing
The parties were unable to resolve the grievance, and pursuant to the dispute resolution provision of the 1996 Wage Agreement, the parties submitted the dispute to arbitration.
A hearing was held on December 14, 1999, before Arbitrator Joseph S. Cannavo, Jr. Both parties appeared and presented witnesses and arguments. Both Peabody and the Union submitted briefs in support of their positions, which briefs the parties have made part of the record here, along with documents submitted as evidence by the Union. The testimony at the hearing, however, was not transcribed.
In its brief, the Union referred the Arbitrator to a 1988 settlement of an identical grievance, in which the Union and Peabody agreed:
Employees required to show up at parking areas to be transported shall be there 15 minutes before starting time. Others shall be ready to go to work — dressed appropriately — at the starting time.
Ex. E to PSOF. In its brief, the Union also described the change in practices in 1996 that gave rise to the grievance:
Around August of 1996, the new mine management had implemented a rule that required all Union personnel that needed transportation to their work sites to be on the pit buses and en route to their worksites 15 minutes before the normal starting times.
Ex. E to PSOF. The Union argued in part that Peabody had failed to comply with the 1988 settlement, "has different rules for different people at different work areas" and "does not abide by past practices and customs."Id.
In its opening statement, Peabody argued that it strictly enforced the requirement of the 1996 Wage Agreement that employees report to the parking areas at least 15 minutes before their start times before 1996 only against the crews operating the "drag lines." See Ex. C to PSOF.After 1996, Peabody argued, it strictly enforced this provision against all union employees, not just the drag line crews, as it was entitled to under the 1996 Wage Agreement. See id.
Peabody did not specifically address in its briefing before the Arbitrator the Union's contention that all employees were now being required to be at the "shanties" or "in the buses en route to the worksite," and not just at the parking areas, 15 minutes before their starting time.
D. The Arbitration Award
Arbitrator Cannavo issued an Opinion and Award on April 2, 2000, sustaining the Union grievance. The Arbitrator specifically found thatuntil 1998, Peabody was in compliance with the 1996 Wage Agreement provision that employees should be "at parking areas at least fifteen (15) minutes before their regular starting times."
The Arbitrator, however found that in 1998, Peabody required "employees to be in the shanty 15 minutes before starting time. This would necessitate that they would be in the parking area prior to 15 minutes before starting time. . . ." (emphasis added). The Arbitrator further noted that "[a]ny changes that the Company wanted to make in regards to when employees should report to the shanty were and are appropriate subjects of bargaining," and not subject to management decision. Ex. G to PSOF.
Based on these findings, Arbitrator Cannavo ruled:
The Company is ordered to discontinue the changes made in 1998 that gave rise to this grievance. It is directed to reinstate the procedures that existed prior to the changes for both the beginning and end of the shifts.
EX. G to PSOF. The Arbitrator noted that it was appropriate during the 15 minutes the employees are in the parking lot before start time, Peabody can manage the employees to the following extent:
[T]he Company can give out work assignments, when necessary, and assess the status of the crews. If employees are absent, the Company can then hold employees for overtime or transfer employees.Id. The Arbitrator, however, specified that the change in policy in 1998 that required the employees to be at the shanty or in the buses en route to the worksite was an improper unilateral modification of the 1996 Wage Agreement.
The Arbitrator specifically retained jurisdiction over the implementation of the Award. Id.
E. The Union Requests Clarification
On October 18, 2000, more than six months after issuance of the Arbitration Award and after a new Wage Agreement was negotiated by the parties, the Union sent a letter to Arbitrator complaining that Peabody Western Coal Co. was not complying with the terms of the Arbitration Award with respect to "dragline crews," crews that operate heavy equipment with booms 80 to 100 meters long. The Union letter stated in pertinent part:
In April of the year 2000, you ruled a grievance in favor of the Union and ordered Peabody Coal Company at Black Mesa Mine to discontinue the changes made in 1998 regarding starting time. You directed Peabody Coal Company to reinstate the procedures that existed prior to the changes for both the beginning and the end of the shifts.
As of today, mine management is complying, except for the Dragline crews. The Dragline Crews are still being required to be on the Pit buses en route to their machines 15 minutes prior to their regular starting times. The Union disagrees with this practice and is asking you for your clarification since you retain jurisdiction over the implementation of the award.
* * *
. . . The Union is asking you to direct management to include all represented employees, even Dragline crews since this was filed as a class action grievance.
Dragline crews, Truck drivers, Laborers, Equipment operators, Drillers, etc., were all considered and effected when this grievance was brought before you.
Defendants' Ex. 5. Peabody did not offer any opposition to this letter complaint to the Arbitrator, a copy of which was provided to it on October 31, 2000.
F. The Arbitrator's Clarification
On May 8, 2001, Arbitrator Cannavo sent a letter to the Union stating in pertinent part:
I have reviewed the file, the award and your request. It is my determination that any unilateral action by Management regarding starting time for all represented employees is a violation of the collective bargaining agreement and a prior settlement agreement. Specifically, requiring the Dragline Crew to be on pit buses 15 minutes prior to their regular starting time is not in compliance with my award of April 2, 2000.
As I have retained jurisdiction over this matter and as the Company did not raise an objection to your request for clarification, the findings, herein, are therefore incorporated by reference to the arbitration award of April 2, 2000.
Ex. I to PSOF.
On August 6,2001, Peabody filed this Complaint, seeking to vacate the May 8,2001, letter from Arbitrator Cannavo. On January 8,2002, the Union filed a Counterclaim, seeking to enforce the April 2, 2000, Opinion and Award, and the letter clarification dated May 8, 2001. The only issue in this lawsuit is whether the dragline crews were or should be encompassed within the Arbitrator's decision.
II. Standard of Review
A motion for summary judgment may be granted only if the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
To defeat the motion, the non-moving party must show that there are genuine factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356 (1986).
The Court views the evidence in the light most favorable to the nonmoving party, and draws any reasonable inferences in the nonmoving party's favor. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996).
III. Discussion
In its Motion for Summary Judgment, Peabody seeks to vacate the Arbitrator's letter clarification dated May 8, 2001.
In its Motion for Summary Judgment, the Union seeks to enforce the May 8, 2001 clarification of the Arbitration Award.
The May 8, 2001, letter from the Arbitrator, responding to the October 18, 2000, request from the Union for clarification or enforcement of his April 2000 Arbitration Award, stated as follows:
I have reviewed the file, the award and your request. It is my determination that any unilateral action by Management regarding starting time for all represented employees is a violation of the collective bargaining agreement and a prior settlement agreement. Specifically, requiring the Dragline Crew to be on pit buses 15 minutes prior to their regular starting time is not in compliance with my award of April 2, 2000.
As I have retained jurisdiction over this matter and as the Company did not raise an objection to your request for clarification, the findings, herein, are therefore incorporated by reference to the arbitration award of April 2, 2000.
Ex. I to PSOF.
The evidence before this Court consists of the record of the underlying Arbitration, specifically the briefs of the parties, the documents made part of the record, the Arbitration Award and the May 8, 2001 letter. Each party has also submitted an affidavit supplementing this record. Peabody's affidavit outlines the pre-1996 practice with regards to the dragline crew, and what it believed was at issue before the Arbitrator. The Union's affidavit chronicles its efforts to clarify the Arbitrator's decision. No transcript was made of the original proceedings before the Arbitrator.
The primary issue on these cross-motions for summary judgment is whether the Arbitrator exceeded the scope of the grievance presented to him, or made an irrational decision, when he clarified his award to include the dragline crew within its provisions. Because the same arguments are raised in both of the cross-motions, this Court will address the motions together.
A. The Cross-Motions for Summary Judgment
The Union has moved for summary judgment to enforce the terms of the Arbitration Award and the May 8, 2001, clarification on the grounds that 1) the Arbitrator's Award and the Arbitrator's May 8, 2001, clarification of the award, are entitled to deference, and no exception to this principle applies; 2) Peabody waived any objection to the May 8, 2001, clarification by failing to object immediately after the Union requested the clarification on October 18, 2000; and 3) Peabody's Complaint in this matter constitutes an untimely appeal of the Arbitration Award.
Peabody has moved for summary judgment to vacate the May 8, 2001, clarification on the following alternative grounds: 1) the Arbitrator was without authority to expand the scope of his April 2000 Award to include dragline workers, and the doctrine of functus officio therefore bars his May 8, 2001 Award; 2) the May 8, 2001 Award ignores the plain language of the 1996 Wage Agreement and irrationally contradicts the April 2000 Arbitration Award; or 3) the Union's request for "expansion" of the Arbitration Award was unreasonably late, and the Union's Counterclaim to enforce the Arbitration Award and the May 8, 2001 letter is time-barred.
B. Standard of Review
Courts are not authorized to reconsider the merits of an arbitrator's award except under very limited circumstances. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371 (1987). "As long as the arbitrator is even arguably construing or applying the contact and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Id.; Stead Motors v. Automotive Machinists Lodge 1173, 886 F.2d 1200, 1209 (9th Cir. 1989). Three narrow exceptions exist to the principle of deference: 1) when the arbitrator's award does not "draw its essence" from the collective bargaining agreement; 2) when the arbitrator exceeds the scope of the issues presented to him; and 3) when the award is contrary to public policy. Federated Department Stores v. Local 1442, 901 F.2d 1494, 1496 (9th Cir. 1990). The burden of demonstrating an exception is on the party seeking to vacate the award. See Stead Motors, 886 F.2d at 1209.
The doctrine of the functus officio prohibits an arbitrator from redetermining a completed arbitration award. See International Brotherhood of Teamsters v. Silver State Disposal Serv., Inc., 109 F.3d 1409, 1411 (9th Cir. 1997). "It is [a] fundamental common law principle that once an arbitrator has made and published a final award his authority is exhausted and he is functus officio and can do nothing more in regard to the subject matter of the arbitration." Id. The principal of functus officio, however, is limited by three exceptions: "an arbitrator can correct a mistake which is apparent on the face of his award, complete an arbitration if the award is not complete, and clarify an ambiguity in the award." Id. Moreover, an arbitrator's decision as to the scope of his authority is entitled to the same deference that the arbitrator's award itself. See Pack Concrete Inc., v. Cunningham, 866 F.2d 283, 285 (9th Cir. 1989) (holding that "an arbitrator's interpretation of the scope of the issue submitted to him is entitled to the same deference accorded his interpretation of the collective bargaining agreement").
A motion for summary judgment may be granted only if the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To defeat the motion, the non-moving party must show that there are genuine factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby. Inc., 477 U.S. at 250, 106 S.Ct. at 2511.
C. Discussion
1) Outside the Collective Bargaining Agreement
The first question is whether the May 8, 2001, clarification applying the Arbitration Award to the dragline crew ignored the language of the collective bargaining agreement, or was irrational. See Stead Motors, 886 F.2d at 1205 n. 6 (an award fails to draw its essence from an agreement when it "ignore[s] the plain language of the contract"); Garvey v. Roberts, 203 F.3d 580, 590 (9th Cir. 2000) (vacating award on ground it was irrational).
Peabody argues that the Arbitrator's May 8, 2001 letter ignores the plain language of the 1996 Wage Agreement and irrationally contradicts the finding in the April 2000 Arbitration Award "that Peabody's transportation of dragline employees compl[ies] with the Agreement," and should be vacated on this alternative ground on summary judgment also. The parties do not dispute the material facts relevant to this issue, which consists solely of the 1996 Wage Agreement, the April 2000 Arbitration Award, and the May 8, 2001, clarification by the Arbitrator.
The 1996 Wage Agreement provides:
Employees will be required to be at the parking areas at least fifteen (15) minutes before their regular starting times . . .
Article XVIII(a) of 1996 Wage Agreement, Ex. B to PSOF. With regards to this paragraph, Peabody argues as follows:
Failing to read the paragraph in its entirety, the Arbitrator reaches the impossible conclusion in the April 2000 Award that Peabody may require employees to be at the parking area 15 minutes before the start of the shift but may not require employees to be transported to their work sites so they can start the shift at the work site. The effect is that Peabody loses 15 minutes work at the beginning of the shift and employees are paid for the last 15 minutes of travel from their homes to their work site. That interpretation cannot rationally be reached upon a reading of the entire clause.
Plaintiff's Motion at p. 16, ll. 5-13. The Arbitrator, however, specifically addressed the issue of what work activities were permissible during the 15 minutes wait time in the parking lot in the April 2000 Arbitration Award as follows:
[T]he Company can give out work assignments, when necessary, and assess the status of the crews. If employees are absent, the Company can then hold employees for overtime or transfer employees.
Arbitration Award, Ex. G to PSOF.
Peabody has failed to raise any dispute of material fact suggesting that the Arbitrator's construction of the 1996 Wage Agreement in the Arbitration Award and the May 8, 2001, clarification ignores the plain language of the contract. It will not be vacated on this ground. See Stead Motors, 886 F.2d at 1205 n. 6.
Peabody further argues that the May 8, 2001, ruling irrationally contradicts the finding in the April 2000 Arbitration Award "that Peabody's transportation of dragline employees compl[ies] with the Agreement." Peabody reads language into the April 2000 Arbitration Award that is not apparent on its face. The April 2000 Arbitration Award specifically found that until 1998, Peabody was in compliance with the 1996 Wage Agreement provision that employees should be "at parking areas at least fifteen (15) minutes before their regular starting times." The Arbitrator further found that in 1998, Peabody required "employees to be in the shanty 15 minutes before starting time," and it was this practice, along with the practice of requiring employees to be "in the pit buses en route to the worksite 15 minutes before starting time," that the Arbitrator found was improper. Based on these findings, Arbitrator Cannavo ruled:
The Company is ordered to discontinue the changes made in 1998 that gave rise to this grievance. It is directed to reinstate the procedures that existed prior to the changes for both the beginning and end of the shifts.
EX. G to PSOF.
Under these circumstances, this Court finds that Peabody has failed to raise a material issue of fact preventing summary judgment for the Union on the issue of whether this limited exception to deference to the Arbitrator's Award and the May 8, 2001, clarification, applies. Cf. Garvey v. Roberts, 203 F.3d at 590.
2) In Excess of Authority
The second question is whether, as a matter of law, the May 8, 2001, clarification applying the Arbitration Award to the dragline crew exceeded, or was within, the scope of the issue before the Arbitrator. "In determining whether an arbitrator has exceeded his authority, the agreement must be broadly construed, with all doubts resolved in favor of the arbitrator's authority." See Int'l Union of Petroleum and Indus. Workers v. Western and Indus. Maint., 707 F.2d 425, 429 (9th Cir. 1983).
Peabody argues that the May 8, 2001, letter award should be vacated because the Arbitrator was without authority to expand the scope of his April 2000 Award to prohibit Peabody from "requiring dragline crew to be on pit buses 15 minutes prior to their regular starting time."
In this case, Peabody argues, this Court should find as a matter of law that the Arbitrator, acting informally and months after issuance of the final award, acted "beyond the subject matter of the arbitration" and expanded the application of his completed prior award to a practice outside the scope of the original grievance, and thus his May 8, 2001, ruling is barred by the doctrine of functus officio, which prohibits an arbitrator from redetermining an award, but allows him to correct a mistake, clarify an ambiguity or complete an award. See Silver State Disposal Serv., Inc., 109 F.3d at 1411.
Specifically, Peabody argues that this Court can find on the undisputed evidence that the Union had filed its class action grievance targeting only the change in procedure implemented by Peabody in 1996 thatextended to all employees the pre-existing policy requiring dragline workers to report to the parking lot 15 minutes before starting time to all employees.
In support of this claim, Peabody offers the language of the original grievance, the description of the grievance in the Union's brief to the Arbitrator, an affidavit from Peabody's employee relations manager, and the testimony of witnesses in the Arbitration Award itself.
Specifically, Peabody has offered the sworn statement of its employee relations manager that the only practice that changed in 1996 with regards to start times were the start times of employees other than the drag line crew. Peabody also offers excerpts from the testimony of the mine manager, district representative and union manager as outlined in the Arbitration Award, which it construes as supporting Peabody's position that a longstanding practice existed of transporting the dragline crew to the worksite before the start of shift. Peabody also offers in support of its position the Arbitrator's finding that Peabody had complied with the 1996 Wage Agreement prior to 1998 (Peabody contends this is a typographical error, and the Arbitrator meant 1996). Because the Union's grievance states that it is challenging the August 1996 scheduling changes, and the Arbitration Award in part directs Peabody to discontinue the 1998 changes in start times, Peabody argues, the Arbitrator was not considering the longstanding practice of requiring the dragline crew to be on buses en route to the worksite 15 minutes before start time.
Peabody's argument, however, is not supported by the record of the underlying Arbitration.
First, the Union specifically styled the grievance as a "class action" on behalf of all represented employees. The Union did not state that it was exempting from this "class action" the dragline crew. Nor did Peabody specifically ask the Arbitrator to exempt the dragline crew from any Award he might make.
Second, the Union's description of the grievance did not exempt the dragline crew from its provisions. The Union outlined the grievance as follows:
Management violated the 1996 Wage Agreement by instituting a new starting and quitting time.
We request to be made whole for all lost wages and benefits. Ex. A to PSOF. The Union described its grievance to the Arbitrator in its opening brief as follows:
Around August of 1996, the new mine management had implemented a rule that required all Union personnel that needed transportation to their work sites to be on the pit buses and en route to their worksites 15 minutes before the normal starting times.
Ex. E to PSOF. The Arbitrator sustained the Union's grievance, effectively requiring Peabody to discontinue the policy of requiring employees to be at the "shanties" or on the pit buses and en route to their worksites 15 minutes before the normal starting times. See Ex. G to PSOF. The Arbitration Award did not exempt the dragline crew from this provision.
Third, the testimony cited by Peabody does not demonstrate that the practice with respect to the dragline crew was not before the Arbitrator. Peabody Mine Manager Buck Woodward is quoted in the Arbitration Award as testifying that "from the early 80s to two (2) years ago [1998], the dragline crew reported to the shanty, left it early and reported to the dragline. He said that loaders, operators and drillers left at the start of the hour; and now they . . . start work at 10 to the hour." Peabody Production Manager Alan Gough, however, is quoted as testifying that "until 2 years ago, employees to be transported were required to be at the shanty 15 minutes earlier and left at about 10 to the hour. He said that now, employees are required to be there 15 minutes early and head to work then." Moreover, District President Fred Lupo testified that "prior to the change that gave rise to the grievance, employees that had to be transported to the drag line need to be there 15 minutes early to get work orders and if there was not a full crew present, Management would make arrangements so that the man trip could leave at 8 a.m. He said that now, the Company wants employees read to leave at 7:45 and they are not paid until 8 a.m."
Fourth, the Arbitrator made no mention of the dragline crew in his ruling that Peabody discontinue its 1996 policy change with regards to start times. The Arbitrator, however, implicitly ruled that Peabody's policy of requiring the employees to be at the shanties or on buses en route to the worksite 15 minutes before start time conflicted with the 1996 Wage Agreement.
Finally, in addressing the Union's request for clarification in its letter of October 18, 2000, the Arbitrator specifically ruled that:
[R]equiring the Dragline Crew to be on pit buses 15 minutes prior to their regular starting time is not in compliance with my award of April 2, 2000.
Ex. I to PSOF.
Even if, as Peabody's employee relations manager suggests, the practice of requiring employees to be in buses en route to the worksite 15 minutes before starting time was not "new" as to the dragline crew, the record of the underlying proceedings shows that Union raised this issue as to the dragline crew in its grievance, and it was presented to the Arbitrator, and specifically addressed by the Arbitrator in his May 8, 2001, clarification.
The Arbitrator's decision as to the scope of his review is entitled to deference by this Court. See Pack Concrete Inc., 866 F.2d at 285. All doubts should be resolved in favor of the arbitrator's authority. See Western and Indus. Maint., 707 F.2d at 429. The Arbitrator's May 8, 2001, letter establishes that the Arbitrator believed that the start times for all employees, including the dragline crew, was the issue submitted to him by the Union grievance, and on which he heard testimony and reviewed evidence. See id. The Arbitrator's belief that the May 8, 2001, letter simply clarified the original Arbitration Award is entitled to deference by this Court. See id.
Under these circumstances, this Court finds that Peabody has failed to raise a material issue of fact preventing summary judgment for the Union on the issue of whether this limited exception to deference to the Arbitrator's Award and the May 8, 2001, clarification, applies. See Western and Indus. Maint., 707 F.2d at 429.
a) The Doctrine of Functus Officio
Both Peabody and the Union disagree in this action on whether the Arbitration Award was intended to encompass the dragline crew. This Court finds on this ground alone as a matter of law that the Arbitration Award was ambiguous, and the May 8, 2001, letter from the Arbitrator represented a clarification of an ambiguous award, and thus was not barred by the doctrine of functus officio. See Silver State Disposal Serv., Inc., 109 F.3d at 1411 (providing an exception to the doctrine of functus officio for a subsequent clarification of an ambiguity in the original Award).
The Union's unilateral request for a clarification of the Arbitration Award was not improper, nor was it a basis on which the Arbitrator's clarification can be vacated. See id. at 1412 ("Under the law of this circuit, an arbitrator has the authority to amend an incomplete award. To hold that a joint request is required before an arbitrator may clarify or complete an award would empower a party that would benefit from an error to prevent its correction."). If Peabody wished to contest the Union's view of the scope of the Arbitration Award, it should have objected then, and not waited until the Arbitrator issued a clarification adverse to its position. See George Day Construction Co. v. United Brotherhood of Carpenters and Joiners, 722 F.2d 1471, 1475 (9th Cir. 1984) ("consent to grant the arbitrator . . . authority may be implied from conduct of the parties in the arbitration setting"). The Arbitrator referenced this absence of objection by Peabody as one of the reasons supporting his clarification in the May 8, 2001, letter. Ex. I to PSOF. Peabody's failure to object to the Union's request for clarification estops it from doing so now. See id.
Moreover, in his initial Award, the Arbitrator specifically retained jurisdiction over implementation of the Award. In issuing the clarification letter on May 8, 2001, the Arbitrator incorporated the clarification by reference into the Arbitration Award on the basis that he had specifically retained jurisdiction over the matter.
For these reasons, the Court rules as a matter of law that the Arbitrator's clarification was not barred by the doctrine of functus officio. See Silver State Disposal Serv., Inc., 109 F.3d at 1411.
3. Timeliness of the Union's Request and Counterclaim
Finally, Peabody asks this Court to dismiss the Union's Counterclaim seeking enforcement of the May 8, 2001, letter ruling on the ground 1) the Union's request for modification of the Arbitration Award was barred by the applicable limitations periods and was unreasonably delayed; and 2) the Union's Counterclaim in January 2002 to enforce the April 2000 Arbitration Award and/or the May 2001 letter is barred by the applicable limitations period.
a) Timeliness of Request for Clarification
Peabody argues that the Union's request of October 18, 2000, constituted a request for modification of the Arbitration Award, which was barred by the applicable limitations period, or barred because it was "unreasonably delayed." The Arbitration Award was issued on April 2, 2000. The Union's request that the Arbitrator rule that the Award also governed starting times for the dragline crew was made more than seven months later, on October 18, 2000. The parties agree that any appeal of the Arbitration Award or request that it be modified was required to be filed within 90 days of the Arbitration Award as set forth in A.R.S. 12-1513 (90 days period for actions to modify or correct an award). See International Union v. Hoosier Cardinal Corp., 383 U.S. 696, 705, 86 S.Ct. 1107, 1113 (1966) (holding that in absence of limitations period in Labor Management Relations Act, courts should apply most analagous state law limitations period). This Court finds however, that the Union's request was a request for enforcement and clarification of the Arbitration Award, and not a request for modification or an appeal, and thus was not governed by the 90-day limitations period. Moreover, the Arbitrator had specifically retained jurisdiction over implementation of the Arbitration Award. Although the Union failed to request the clarification for seven months after issuance of the original Arbitration Award, the Court is unable to find under the circumstances that the Union "unreasonably delayed" the request as a matter of law.
Peabody's motion for summary judgment on this issue must therefore be denied. The Court instead finds, based on the undisputed evidence before it, that the Union's request for clarification was not unreasonably delayed.
b) Timeliness of Counterclaim
Peabody argues alternatively that the Union's Counterclaim to enforce the Arbitration Award and the May 8, 2001 letter is time-barred. Peabody concedes that the Arizona Arbitration Act does not establish a specific limitation period for suits to enforce arbitration awards. Peabody suggests that this Court adopt the Washington statutory one-year limitation period approved in Sheetmetal Workers Int'l Assn' v. Air Sys. Eng'g, Inc., 831 F.2d 1509 (9th Cir. 1987), or the six-month limitation applied to "hybrid" actions, those actions claiming violation of the Labor Management Relations Act and a common law cause of action, in DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281 (1983).
This Court finds that the Union's enforcement action is a straightforward action to confirm an arbitration award, and not a "hybrid" action governed by the six month limitation period. Thus, this Court must apply the most analagous state statute of limitation. See International Union v. Hoosier Cardinal Corp., 383 U.S. 696, 704, 86 S.Ct. 1107, 1113 (1966) (holding that in absence of limitations period in Labor Management Relations Act, courts should apply most analagous state law limitations period). This Court finds that an action to enforce an Arbitration Award is most analagous to an action for which no other limitation is otherwise prescribed, which is four years. A.R.S. § 12-550.
Peabody's motion for summary judgment on the ground that the Union's Counterclaim seeking enforcement of the Arbitration Agreement and the May 8, 2001, clarification is time-barred therefore fails. The Court instead finds, based on the undisputed evidence before it, that the Union's Counterclaim is not time-barred.
D. Conclusion
As outlined above, Peabody has failed to raise any issue of material fact that would prevent this Court from granting summary judgment to the Union on its claim for enforcement of the April 2000 Arbitration Award and the May 8, 2001, clarification of the Arbitration Award. This Court will therefore grant summary judgment in favor of the Union on its claim for enforcement of the May 8, 2001, clarification.
The Court, however, declines to grant the Union's request that it be award attorneys' fees as a sanction for Peabody's failure to implement the Arbitration Award as against the dragline crew, as clarified in the Arbitrator's letter of May 8, 2001. Peabody did not "simply refuse to honor the award," but rather disputed its application to the dragline crew, a dispute that cannot be considered frivolous. Cf. Int'l Union of Petroleum and Indus. Workers v. Western Indus. Maint. Inc., 707 F.2d 425, 428 (9th Cir. 1983) (awarding attorney's fees for engaging in frivolous dilatory acts).
Accordingly,
IT IS HEREBY ORDERED denying Plaintiff/Counterdefendant's Motion for Summary Judgment (Dkt. #32);
IT IS FURTHER ORDERED granting in part and denying in part Defendants/Counterclaimants' Motion for Summary Judgment (Dkt. # 29);
IT IS FURTHER ORDERED directing Peabody to enforce terms of the April 2, 2000, Arbitration Award and the May 8, 2001, clarification by the Arbitrator;
IT IS FURTHER ORDERED denying Defendants/Counterclaimants' request for attorneys' fees and sanctions;
IT IS FURTHER ORDERED directing the Clerk to enter Judgment in favor of Defendants/Counterclaimants.