Amalgamated Meat Cutters & Butcher Workmen of North America, Local 195, Afl-Cio v. Cross Brothers Meat Packers, Inc

518 F.2d 1113, 89 L.R.R.M. (BNA) 2594, 1975 U.S. App. LEXIS 14287

• Court: Court of Appeals for the Third Circuit
• Decided: June 10, 1975
• Docket: 74-1436
• Status: Published

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from a March 22, 1974, district court judgment. The court enforced the award of an arbitrator in favor of the defendant-counter-claimant, Cross Brothers Meat Packers, Inc. (“Packers”), and against the plaintiff, Local 195 of the Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO (“Local 195,” the “local,” or “the union”). Amalgamated Meat Cutters Local 195 v. Cross Bros. Meat Packers, Inc., 372 F.Supp. 1274 (E.D.Pa.1974).

Local 195 is the elected bargaining representative of two collective bargaining units within the Packers plant, the two units consisting of slaughtering employees and boning employees. There are two other collective bargaining units in Packers, consisting of office and clerical employees and of delivery employees. These units are represented by Teamsters’ Locals 161 and 500, respectively. Local 195 also represents a bargaining unit in a second company, Cross Brothers Hotel Supply, Inc. (“Supply”). Packers and Supply are located across the street from one another. While not contesting the issue, Packers has reserved its position on Local 195’s position that Packers and Supply are in reality a single employer, contending that this issue has no legal significance. See 372 F.Supp. at 1277; Cross Bros. Meat Packers, Inc. and Amalgamated Meat Cutters, Local 195, Voluntary Labor Arbitration Tribunal, Case No. 14 30 085 71 R, Arbitrator’s October 7, 1972, Award and Opinion (Stein, Arbitrator) at 3 (hereinafter “Arbitrator’s Opinion”).

The incident underlying this litigation occurred on July 1, 1971, the first day after the Supply unit’s collective bargaining agreement had expired.¹ On that day the Supply employees struck Supply and 20 to 30 Supply employees also began to picket across the street at the four entrances to Packers’ premises. 372 F.Supp. at 1277. Local 195 requested employees of Packers to respect the picket line. Id. The arbitrator described the success of the picket line as follows:

“On July 1, 1971, Packers expected approximately 65 slaughterhouse and 18 boning employees to report for work. None reported, since they refused to cross the Local 195 picket line. The office and clerical employees and the delivery employees, represented by Teamsters’ locals 161 and 500 respectively, similarly did not report, for work. . . . Employees of an independent contractor building an addition to Packers’ building, as well as those of a garbage removal contractor, also refused to cross the picket line in order to perform their job duties. Packers’ employees who were not part of any represented bargaining unit, including members of management, were either not permitted to enter the building or were induced not to report for work.”

Arbitrator’s Opinion at 5. The shutdown at Packers did not last long; in the afternoon of July 1, 1971, a Pennsylvania Court of Common Pleas issued a “preliminary restraining order” which prevented Local 195 from picketing at the Packers plant. Cross Bros. Meat Packers, Inc. v. Amalgamated Meat Cutters Local 195, et al., Court of Common Pleas, County of Philadelphia, June Term 1971, No. 4535.

At the time of the work stoppage there were collective bargaining agreements in effect for the two units of Packers employees represented by Local 195. Both agreements contained “no-strike” clauses, in each of which the union guaranteed “for itself and for its individual members” that there would be no interference with production during the term of the agreement.

1a Both agreements also created grievance procedures which included compulsory arbitration as the last resort.²

Invoking these grievance procedures, Packers demanded compensation from Local 195 for the damages caused by the work stoppage. Voluntary adjustment of the claims failed, and the matter was submitted to a single arbitrator.³ On October 7, 1972, the arbitrator ordered the union to pay Packers $14,826.48 in damages.⁴ On November 9, 1972, Local 195 filed, a complaint in the United States District Court for the Eastern District of Pennsylvania, requesting the court to vacate the arbitrator’s award.⁵ Packers counterclaimed for enforcement of the arbitration award. In an initial Memorandum Opinion, the district court denied Packers’ motion for judgment on the pleadings. Amalgamated Meat Cutters Local 195 v. Cross Bros. Meat Packers, Inc., 362 F.Supp. 127 (E.D.Pa.1973). In a second opinion, the court granted the defendant’s motion for summary judgment. Amalgamated Meat Cutters Local 195 v. Cross Bros. Meat Packers, Inc., 372 F.Supp. 1274 (E.D.Pa.1974). Local 195 timely appealed from the district court’s judgment in favor of Packers.

I.

The first issue raised by Local 195 is whether Packers’ claim for damages caused by the picketing was arbitrable.⁶ Both parties agree that this issue is for the courts to decide. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546—47, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Local 616, Int. U. of E., R. & M. Wkrs. v. Byrd Plastics, Inc., 428 F.2d 23, 25 (3d Cir. 1970).

It is helpful to divide the dispute into two parts, damages caused by the refusal of members of the boning and slaughtering units to cross the Supply unit’s picket line, and damages caused by the refusal of other persons to cross the picket line.

With respect to the first, we can begin with two generally accepted propositions: the union can bargain away the right of members of a collective bargaining unit it represents to hon- or lawful picket lines; and, therefore, the question whether that right has been bargained away may be an arbitrable question. NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953); Island Creek Coal Co. v. United Mine Workers, 507 F.2d 650 at 652—653 (3d Cir. 1975). Both the slaughtering and the boning agreements included grievance-arbitration clauses which were called into play “[sjhould any difference arise between the parties hereto . . . as to the interpretation or application of this agreement,” and “[i]f a grievance arises.” ⁷ While these clauses did not specifically refer to disputes over the right of the employees to honor lawful picket lines, they were contained in the same articles that contained sweeping no-strike clauses. It is, therefore, natural to infer that the scope of the no-strike clauses was a proper subject of arbitration, particularly in the light of the strong policy favoring the peaceful resolution of labor disputes through arbitration. See Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); NAPA Pittsburgh, Inc. v. Automotive Chauffeurs Local 926, 502 F.2d 321, 323 (3d Cir.), cert. denied, 419 U.S. 1049, 95 S.Ct. 625, 42 L.Ed.2d 644 (1974). Since this court recently held that the question whether the union had relinquished the right to cross picket lines was arbitrable, even in the absence of any no-strike provision, Island Creek Coal Co. v. United Mine Workers, supra, it would be anomalous to reach a different result in this case, where both collective bargaining agreements contained strong no-strike clauses which were tied directly to the grievance-arbitration mechanism.

The arbitrator’s award extend- . ed beyond the damages caused by the actions of the slaughtering and boning employees, however. His award also encompassed the damages caused by the refusal of persons not represented by Local 195 to cross the Supply picket lines.⁸ Apparently, the arbitrator included these damages because he found that the picketing itself — apart from the actions of the slaughtering and boning employees in honoring the picket lines — was proscribed by the collective bargaining agreements covering the slaughtering and boning units.⁹ Arbitrator’s Opinion at 9 — 11. We therefore must decide whether the Supply employees’ right to picket was an arbitrable issue where the collective bargaining agreement covering those employees had expired, but where the local which represented them had agreements which related to different bargaining units, and which contained no-strike and arbitration clauses.¹⁰

Our problem is that the two basic propositions with which we began analysis of the arbitrability of the first part of the arbitrator’s award (page 1117, supra ) cannot form the foundation for analysis of the second part. It is one thing to say that a union, in representing one collective bargaining unit, may bargain away that unit’s right to honor picket lines, but quite a different thing to say that in representing one unit the union may bargain away the right of a different unit to picket at the first unit’s work location. And yet this is exactly the result which the arbitrator reached. He interpreted collective bargaining agreements for the slaughtering and boning employees in such a way as to allow Packers to recover damages caused by the picketing of Supply employees, who were members of an entirely different collective bargaining unit, and whose collective bargaining agreement had expired.

So far as we have been able to determine, we face a question of first impression. Strong arguments have been advanced on both sides. The union bases its contentions on the unassailable proposition that an arbitrator’s power derives from an existing collective bargaining agreement. John Wiley & Sons, Inc. v. Livingston, supra, 376 U.S. at 546-47, 84 S.Ct. 909; Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 582, 80 S.Ct. 1347. Since the picketing related to a dispute between Local 195 and Supply, between whom there was no existing collective bargaining agreement, there was no contractual basis for the arbitrator’s power to determine the union’s right to picket. Put another way, the union is maintaining that it could not force Supply to arbitrate the economic dispute (negotiation of a new collective bargaining agreement) which gave rise to the picketing; therefore, there is no quid pro quo for the no-strike “agreement” which the arbitrator enforced against the union. See Avco Co. v. Local 787, UAW, 459 F.2d 968, 971-73 (3d Cir. 1972); see also The Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 252-53, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).¹¹

Packers, on the other hand, points out that in both the slaughterhouse and boning agreements Local 195 guaranteed “for itself,” without limiting “itself” to its capacity as representative for the slaughtering and boning units, that it would not engage in any work stoppage.¹² The company maintains that it had a right to rely on these clauses and that the local should not be allowed to circumvent them by “changing hats,” first agreeing to broad no-strike clauses as the representative for two units, then picketing as the representative for a third unit. On the company’s side is the strong presumption in favor of arbitration. See United Mine Workers v. Warrior & Gulf, supra.

Because courts should not dissect unitary arbitration awards, see Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969), and for the reasons given at p. 1124 of the concurring opinion, the. award should be enforced in its entirety or not at all. . While we are not prepared to give a generalized answer, several factors in this case persuade us that Packers was entitled to arbitration of both parts of its claim.¹³ Where a suggested interpretation of the scope of a collective bargaining agreement is not plainly frivolous, and the arbitration clause encompasses the “interpretation” of the agreement (see Article TENTH, second paragraph, at note 2 above), we believe that courts should leave it to the arbitrator to pass on the suggested interpretation. See A. Cox, Reflections upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1515 — 17 (1959), where this language appears at 1516:

“[Arbitration should be ordered in an action under section 301 whenever the claim might fairly be said to fall within the scope of the collective-bargaining agreement. If the latter contention be made but is patently frivolous, arbitration should be denied.”

Prior to July 1, 1971, strikes against Supply had never resulted in picketing at the Packers plant, and strikes against Packers had not resulted in picketing at the Supply plant. Arbitrator’s Opinion at 11. Thus, Packers might legitimately have anticipated that there would be no work stoppage at its plant so long as the Packers collective bargaining agreements were in effect, even if there were a stoppage at Supply. Packers’ reading of the collective bargaining agreements with Local 195 as codifications of their past bargaining history was a possible, and therefore an arbitrable, interpretation of the no-strike clauses in those agreements.¹⁴

In the second place, the union could have altered the expectations which arose from Packers’ past experience. Drafting an exception to the no-strike clauses of the slaughtering and boning agreements for lawful picketing by Supply employees would have avoided arbitration of the Supply picketing by rendering Packers’ interpretation of the agreements patently frivolous. Cf: Arbitrator’s Opinion at ll.¹⁵ Finally, holding for the company does not entirely deprive the members of the Supply unit of their right to engage in protected concerted activity. The arbitrator could have interpreted the agreements in favor of the union. Even though he did not, Local 195 was still free to strike Supply and to picket the Supply plant; the Supply employees were only penalized for picketing allegedly protected by the “ally doctrine.” ¹⁶

For all these reasons, which we emphasize are peculiar to the unique facts of this case, we have concluded that in negotiating the slaughtering and boning agreements Local 195 agreed to arbitrate the question of the Supply unit’s right to picket at the Packers plant. The above considerations also persuade us that, in this case, the policy in favor of the peaceful resolution of labor disputes through arbitration outweighs any damage which arbitration might cause to the Supply unit’s right to picket at the Packers plant. We will, therefore, enforce the arbitrator’s damage award in its entirety.

We could well reach a different conclusion if the employer’s stated expectations were based solely on ambiguous language in the collective bargaining agreement, rather than the language and past history, or if enforcing the arbitration agreements would entirely deprive the employees in the unit not covered by a collective bargaining agreement of their right to engage in concerted activity. In the circumstances of this case, however, we hold that Local 195’s right to picket the Packers plant was an arbitrable issue under the slaughtering and boning agreements.

II.

The union next objects to the submission of Packers’ claim to a single arbitrator. The nub of the problem is that the two collective bargaining agreements between Local 195 and Packers provided for different arbitration procedures. The agreement for the slaughtering employees contemplated arbitration by a panel of three arbitrators; under the boning agreement, the union and Packers were to select an “impartial chairman” when their representatives could not agree on the resolution of a dispute.¹⁷ It is the union’s position that there was an outstanding factual issue regarding its waiver of a right to the three-member panel provided in the slaughtering agreement, so that the district court erred in entering summary judgment for Packers.

As Local 195 acknowledges, it was for the arbitrator to decide whether the procedural aspects of the arbitration clauses had been followed. John Wiley & Sons v. Livingston, supra, 376 U.S. at 557, 84 S.Ct. 909. The local appears to believe that there should be an exception to this rule where, as here, the arbitrator did not discuss the issue whether the local had waived its right to a panel of three under the slaughtering agreement.

We have found no support for such an exception. The arbitrator’s silence could indicate that the union failed effectively to call the three-member panel issue to the arbitrator’s attention. A party who voiced an ambiguous objection to the arbitrator’s jurisdiction¹⁸ at the beginning of arbitration should not be permitted to reopen the arbitrator’s award in the courts on the ground of the arbitrator’s understandable failure to discuss the issue of the panel’s composition in his award.¹⁹

Alternatively, the silence might indicate that the arbitrator decided that the three-member panel issue did not merit independent discussion in his award. The Supreme Court has said that “ [arbitrators have no obligation to the court to give their reasons for an award.” Steelworkers v. Enterprise Wheel Co., 363 U.S. 593, 598, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). As the district court noted, there were ample grounds on which the arbitrator could have based his decision to assume jurisdiction over the claim, despite the three-member provisions in the slaughtering agreement. 372 F.Supp. at 1276-77. That the arbitrator did not articulate these reasons should not open the union’s objections to decision by a single arbitrator to second-guessing by the courts. Steelworkers v. Enterprise Wheel, supra. We therefore conclude that, even if there were factual issues outstanding regarding the union’s waiver of a right to a panel of three arbitrators, these issues were for the arbitrator, not the courts, to decide.

III.

The final argument made by Local 195 is that the arbitrator’s award was “arbitrary, capricious, and in manifest disregard of the law.” As the union’s own statement of the issue suggests, our scope of review is narrow in the extreme. We must affirm if the award “can in any rational way be derived from the agreement,” and can only reverse if “there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop.” Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969). See Steelworkers v. Enterprise Wheel, supra, 363 U.S. at 599, 80 S.Ct. 1358. The union’s arguments under this heading stem primarily from its contention that a collective bargaining agreement with respect to one collective bargaining unit could not, as a matter of labor policy, restrict the right of another unit to engage in protected, concerted activities. Thus, they address the question whether the issue of damages caused by the picketing was arbitrable, discussed under “I” above. We concluded that, at least in this case, the damages caused by the picketing were arbitrable.

The only question remaining is whether the arbitrator’s award was in “manifest disregard” of the slaughtering and boning agreements. We have no difficulty in holding that it was not. In both agreements the union guaranteed “for itself” that there would be no work stoppage, which naturally suggests that the union would not picket the Packers plant during the terms of those agreements.²⁰ This reading of the agreements is consistent with the union’s prior practice of not picketing Packers when striking Supply.²¹ We therefore conclude that the arbitrator’s award was properly derived from the collective bargaining agreements between Local 195 and Packers.

Accordingly, the judgment of the district court will be affirmed.

1 . The agreement was negotiated by a hotel and restaurant supply association, of which Supply was a member, and Local 195. Arbitrator’s Opinion at 4.

. The dissenting opinion underestimates, we believe, this guarantee language in the two Packers’ contracts with Local 195 and ignores the fact that Local 195, not the Supply employees, is the defendant on the counterclaim.

2 . Article Tenth of the agreement for the slaughtering unit provided:

“TENTH: STRIKES, LOCK-OUTS, GRIEVANCES AND ARBITRATION

“The Union, for itself and for its individual members, agrees and guarantees that there shall be no strike, stoppage of work, slowdown or other interference with production. The Employer agrees that he shall not lock out his employees during the term of this agreement. The Union further agrees not to call a sympathy strike for any reason whatsoever during the term of this agreement.

“Should any difference arise between the parties hereto or between the Employer and the employees as to the interpretation or application of this agreement, an earnest effort shall be made to settle such difference in the following manner:

“(a) The grievance shall be in the first instance taken up by the steward with a designated representative of management at a time and place mutually agreeable. If no adjustment is reached:

“(b) The grievance shall be referred to the appropriate Union official for presentation to the appropriate official of the Employer and shall be answered by the Employer within two weeks after such referral. If no adjustment is thus reached:

“(c) The grievance shall be submitted to an arbitration board by either party, and the arrangements for the arbitration procedure, including the selection of the third arbitrator, shall be completed within thirty (30) days from the date of the final answer of the Employer. The board of arbitration shall be composed of three members, one selected by the Employer, one selected by the Union, and the third member selected by the first two. If a third arbitrator agreeable to both parties cannot be selected, the parties agree to draw a third arbitrator by lot from names submitted by the American Arbitration Association. The board of arbitration shall have no right to modify, amend or add to the terms of this agreement, or to require of the Employer, the Union or of any employee of the Employer, any act it or he is not required by law or by this agreement to perform. Each party shall share equally the expenses of the third member of the arbitration board. Any decision of the board of arbitration within the scope of its authority shall be final and binding upon both parties during the term of this agreement.

“The Employer shall have the right to initiate and process grievances in the same manner as above provided.”

Document No. 2, Exhibit A, pp. 7-9. Article IX of the agreement for the boning unit provided:

“ARTICLE IX

“Strikes, Lockouts, Grievances and Arbitration

“Section 1. The UNION for itself and for its individual members agrees and guarantees that there shall be no strike, stoppage of work, slow-down or other interference with production. The EMPLOYER agrees that he shall not lock out EMPLOYEES during the term of this Agreement. The UNION further agrees not to call a sympathy strike for any reason whatsoever during the term of this agreement.

“Section 2. If a grievance arises, it shall be taken up immediately in the first instance with the foreman or other supervisor of the EMPLOYER by the steward. The foreman or supervisor shall render his decision thereon as soon as possible. If no adjustment is thus reached, then the parties hereto agree that any matter in controversy or dispute shall be referred immediately to two (2) representatives, one to be appointed by the UNION and the other by the EMPLOYER for adjustment, and if the two cannot agree, they shall select an Impartial Chairman to whom the matter shall be submitted. The findings and decisions of the Impartial Chairman shall be final and binding upo,n the parties hereto.”

Document No. 1, Exhibit A, pp. 8-9. The latter provision was negotiated by Local 195 and The Boneless Meat Dealers of Philadelphia and Vicinity, of which Packers was not a member, but Packers and Local 195 independently agreed to its terms. Arbitrator’s Opinion at 4.

3 . The parties dispute whether this submission was in compliance with the collective bargaining agreements. See Section II of this opinion, pages 1120-1121.

4 . These damages consisted of $1100. for feed and transportation for three truckloads of cattle which were denied ingress to the plant; $8405. for shrinkage caused by delay in slaughtering cattle and in shipping processed meat; $600. for condemnation of 2000 lbs. of meat; and $4721.43 for counsel fees. Arbitrator’s Opinion at 5-6, 11-12.

5 . The district courts have jurisdiction under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185 (1963), to enforce arbitration awards made pursuant to such contracts. Local 336, American Fed’n of Musicians v. Bonatz, 475 F.2d 433 (3d Cir. 1973). Conversely, the district court had jurisdiction over Local 195’s suit to set aside the arbitrator’s award.

6 . Packers contends that this issue was not presented to the district court. Appellee’s Brief at 9. We agree with Local 195 that it argued the issue before the district court. See Memorandum of Law in Support of Plaintiffs Motion, App. 183a-84a.

7 . See note 2 above.

8 . See note 4 above.

9 . Whether Local 195’s picketing at the Packers plant was lawful under the “ally doctrine,” NLRB v. Local 810, Steel Fabricators, 460 F.2d 1 (2d Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972), is irrelevant to the issue of arbitrability. Even if the Supply unit’s picketing of the Packers plant had been a glaring illegal secondary boycott, the question would remain whether damages resulting from the picketing may properly be claimed before an arbitrator whose power derives from collective bargaining agreements for different bargaining units.

10 . Since courts may only enjoin protected, concerted activity if arbitration is available to the union as a quid pro quo, see Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Avco Co. v. Local 787, UAW, 459 F.2d 968, 971-73 (3d Cir. 1972), a holding that Supply’s picketing at the Packers plant was enjoinable under the slaughtering apd boning agreements would necessarily imply that the issue of the union’s right to picket there was arbitrable under those agreements. The question arises, therefore, whether the injunction against the picketing entered by the Court of Common Pleas for the County of Philadelphia, see page 1115 supra, does not collaterally estop Local 195 from litigating the issue of the picketing’s arbitrability. We have concluded that it does not. An ex parte “preliminary restraining order” was entered on July 1, 1971. App. 45a. On July 20, 1971, the court held a hearing on the question whether a “preliminary injunction’” should not be issued. Local 195 was to submit a brief on the question within a week. Transcript of July 20, 1971, hearing before Cipriani, J., at 75 (App. 123a). On July 26, 1971, Packers’ attorney submitted to the court an “Order to Settle, Discontinue, and End” the suit. Judge Cipriani entered such an order on July 29, 1971. It thus appears that no final disposition on the merits was ever made, so that the state court action has no collateral estoppel effect on the issue of arbitrability in this court.

11 . The union contends, further, that the arbitrator’s result is anomalous because it turns on the fortuity that the same local represented both the Supply unit and the slaughtering and boning units; the arbitrator himself thought that the result might well have been different if the Supply unit had been represented by a different local. Arbitrator’s Opinion at 11. However, the arbitrator’s award is not as anomalous as the union believes. Restrictions on a union member’s right to engage in protected, concerted activity frequently arise from his local’s membership in a parent organization. The international may, for example, require the local to agree to compulsory arbitration in its collective bargaining agreements. The local may also be required to seek the international’s approval before any strike. See 48 Am.Jur.2d, Labor and Labor Relations § 87 (1970). In such cases, -restrictions on the member’s protected activities flow from his local’s membership in an international. In this case, the restriction on the Supply unit’s right to picket flows from its membership in the same local which represents the Packers units. We can perceive no difference in principle, so long as the members of the Supply unit had some forewarning of the potential limitation, on their protected activities, as members of an international are forewarned by the international’s constitution and practices.

12 . At least one of the picketers carried a placard indicating that “Local 195” was on strike. Arbitrator’s Opinion at 4.

13 . In so deciding, we do not prejudge the question whether the members of the Supply unit would have an action for unfair representation against Local 195. It is true that such suits have usually involved alleged discrimination between members of a single collective bargaining unit. See, e. g., Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967) (“A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith” (emphasis added).); Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) (suit against union for unfairly favoring employees of one company over those of another when both groups were members of the same collective bargaining unit). However, the extension of the principle of unfair representation to alleged preference of one bargaining unit over another by the same local has never, 'as far as we have been able to determine, been passed upon by the courts. Contrary to the dissent, this note is not designed to make any implication.

14 . Because this is a suit to enforce an arbitrator’s award, rather than a suit to compel arbitration, we already have the benefit of the arbitrator’s opinion. He not only decided that Packers’ interpretation of the agreements was not frivolous, but also agreed with that interpretation.

15 . This course is still open to the union to avoid a repetition of the situation which caused this suit. The union could also bargain to have the three agreements expire at the same time, or to modify the no-strike clauses of the existing agreements. See Humphrey v. Moore, 375 U.S. 335, 353, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) (Goldberg, J., concurring). Finally, the union could petition the NLRB for consolidation of the three bargaining units.

16 . See note 10 above.

¹⁷

18 . Local 195 relies on an affidavit of one of its attorneys, Mark P. Muller. Doc. 12, Exhibit A. According to that affidavit, Mr. Muller “personally appeared at said arbitration and objected to the jurisdiction of the American Arbitration Association, and any arbitrator or arbitrators appointed to arbitrate this case, Professor Stein included.” The affidavit also claimed that “[a]t no time during his representation of Local 195 in the present case did [Mr. Muller] ever agree, either explicitly or impliedly, to the arbitration process nor to Professor Stein as the single and sole arbitrator.”

On our reading, Mr. Muller’s objection was directed more clearly to the issue discussed under “I” of this opinion than to this three-member panel issue. Cf. 372 F.Supp. at 1276.

19 . Similarly, a “loser is not permitted for the first time to raise an objection to the arbitration panel after the award has been made.” 372 F.Supp. at 1276 n.2.

²⁰

21 . See pp. 1119-1120 above. Cf. Newark Stereotypers’ U. No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 600 (3d Cir. 1968).