General Telephone Co. v. International Brotherhood of Electrical Workers

554 F.2d 985

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 31, 1977
• Docket: No. 76-1198
• Status: Published

Opinions

EUGENE A. WRIGHT, Circuit Judge:

General Telephone Company appeals from a decision of the district court in which an arbitration award was enforced. We affirm.

Section 23.14 of the collective bargaining agreement between the employer and the union provided: “[w]hen service or work conditions merit, an individual may be specifically appointed in-charge.” Claiming a violation of the provision, the union filed a grievance on behalf of members who had not been appointed “in-charge.” The matter ultimately went to arbitration as outlined in the collective bargaining agreement.

Based upon his interpretation of the provision, the arbitrator decided in favor of the union. He ruled that, according to this section, the employer must appoint an employee-in-charge, whenever two cable splicers, as in the past, were assigned to work together.

The employer argues that the arbitrator erred because § 23.14 is unambiguous and susceptible of only one interpretation, that the employer has the sole discretion to appoint an employee-in-charge whenever it determines conditions warrant such a designation. The arbitrator’s interpretation was gleaned from the parties’ prior conduct and from an examination of their intent as evidenced in earlier negotiations. We do not view his interpretation as “capricious” or “unreasonable.” Holly Sugar Corp. v. Distillery, Rectifying, Wine & A.W.I.U., 412 F.2d 899, 904 (9th Cir. 1969). See also Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 584-5, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Aloha Motors, Inc. and I.L.W.U. Local # 142, 530 F.2d 848 (9th Cir. 1976).

It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.

Steelworkers v. Enterprise Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960).

Appellees have also asked for an award of attorney’s fees. The general rule is against the allowance of counsel fees as taxable costs. 6 Moore’s Federal Practice U 54.77[2]. Note, 51 Wash.L.Rev. 1047, 1048 (1976).

There is no congressional authorization for an award of fees in these circumstances, nor do we consider this to be an appropriate case for the utilization of the bad faith or common benefit exceptions of the American rule. Cf. Burroughs v. Board of Trustees, 542 F.2d 1128, 1131-32 (9 Cir., 1976), cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543 (1977).

AFFIRMED.