Arco Enterprises, Inc. v. Operative Plasterers’

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 04-1937
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ARCO ENTERPRISES, INC.
Appellant
v.
OPERATIVE PLASTERERS’ AND CEMENT MASONS’
INTERNATIONAL ASSOCIATION OF
UNITED STATES AND CANADA, LOCAL NO. 31
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 02-cv-00848)
District Judge: Honorable Terrence F. McVerry
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Submitted Under Third Circuit LAR 34.1(a)
January 27, 2005
Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges.
(Filed February 3, 2005)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Appellant Arco Enterprises, Inc. (“Arco”) appeals from the order of the District
Court denying its motion for summary judgment, granting Appellee Operative Plasterers’

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and Cement Masons’ International Association of United States and Canada, Local Union
No. 31's (“Local 31”) motion for summary judgment, and directing Arco to comply with
the decision of a labor arbitration panel to pay back wages and fringe benefits. We will
affirm.
Arco, a construction contractor owned by Ronald Repasky and his family, was
party to a collective bargaining agreement (“CBA”) with Local 31, a labor organization
representing plasterers. In 2001, Repasky contacted Kevin Gorman and Timothy
Emricko, plasterers and members of Local 31, and had them commence work on property
owned by Repasky and his wife located in Greensburg, Pennsylvania. Arco had provided
services to maintain the Greensburg property and on occasion stored and parked
equipment there. Arco’s practice had been to submit annual invoices to the Repaskys,
“d/b/a D&R Industrial Center,” for any work Arco performed at the Greensburg property.
In early October 2001, Repasky ordered Gorman and Emricko off the job because
he was unhappy with their work. Instead of contacting Local 31 to find replacement
plasterers, Repasky hired Jones Plastering, a non-union contractor, to complete the work.
Repasky never informed Local 31 that he had retained Jones Plastering, and refused Local
31’s request that he replace Jones Plastering with union plasterers. On November 2,
2001, Local 31 filed a grievance against Arco alleging that Arco had breached the CBA
by permitting non-union contractors to perform bargaining union work.

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Article II of the CBA mandates the use of a Joint Conference Committee (“JCC”)
to resolve grievances. Article II directs that the JCC shall be composed of an equal
number of representatives selected by Arco and Local 31. The JCC convened on
November 6, 2001, to hear Local 31's grievance. Among the representatives of the JCC
selected by Local 31 was Emricko, one of the two original union plasterers fired by
Repasky. Repasky and Arco did not object to Emricko’s selection to the JCC. By a vote
of 4-2, the JCC found that Arco had violated the CBA by using non-union contractors and
ordered Arco to pay back wages and fringe benefits to Emricko and Gorman. Arco
refused to comply with the award and filed this action in the United States District Court
for the Western District of Pennsylvania seeking to vacate the award. The District Court
granted summary judgment to Local 31, denied summary judgment to Arco, and
confirmed the award of back wages and benefits. This appeal followed.
We exercise plenary review of a district court’s grant of summary judgment.
Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 679 (3d Cir. 2003). A labor
arbitrator’s award “must draw its essence from the contract and cannot simply reflect the
arbitrator’s own notions of industrial justice.” Eastern Associated Coal Corp. v. United
Mine Workers of America, District 17, 531 U.S. 57, 62 (2000) (quoting Paperworkers v.
Misco, Inc., 484 U.S. 29, 38 (1987)). “An arbitration award draws its essence from the
bargaining agreement if ‘the interpretation can in any rational way be derived from the
agreement, viewed in the light of its language, its context, and any other indicia of the

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parties’ intention.’” United Transp. Union Local 1589 v. Suburban Transit Corp., 51 F.3d
379, 379-80 (3d Cir. 1995) (internal quotation marks omitted). “‘[A]s long as [an honest]
arbitrator is even arguably construing or applying the contract and acting within the scope
of his authority,’ the fact that ‘a court is convinced he committed serious error does not
suffice to overturn his decision.’” Id. (citation omitted).
Arco raises several arguments on appeal. First, it contends that the JCC’s decision
did not “draw its essence” from the CBA because it enforced the CBA against Arco even
though the decision to hire non-union labor, and the refusal to hire union labor, to
perform work on the Greensburg property was not made by Arco. Arco contends that the
evidence is clear that Repasky and his wife, in their individual capacities, made the
decisions resulting in Local 31's grievance. As a result, Arco argues, it was reversible
error for the JCC to find that Arco, as opposed to the Repaskys, had breached the CBA.
We disagree. The record supports the JCC’s implicit finding that Arco, the
Repaskys and D&R Industrial Center were essentially one and the same, and that the
decision giving rise to Local 31's grievance was made by Repasky in his capacity as
owner and operator of Arco. The record clearly does not support the showing necessary
to surmount the high hurdle for overturning a labor arbitration award such as the JCC’s.
Arco argues further that enforcing the JCC’s decision would violate public policy
because a voting member of the JCC, Emricko, was a clearly biased participant. It is true
that “[a]rbitration awards rendered pursuant to collective bargaining agreements can be

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vacated when such awards violate public policy.” Suburban Transit, 51 F.3d at 381
(citing W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983)). “However, the
public policy ‘must be well defined and dominant, and is to be ascertained by reference to
the laws and legal precedents and not from general considerations of supposed public
interests.’” Id. (quoting W.R. Grace, 461 U.S. at 766) (citation and internal quotation
marks omitted)). The CBA provided for Local 31 and Arco to select equal numbers of
JCC members who would “represent[ ]” their respective positions and interests.
Presumably, then, each member of the JCC would be biased towards the interest of the
entity which selected him or her, and any impartiality in the JCC would arise from the fact
that each side got to select an equal number of representatives. See United Steelworkers
of America Local 1913 v. Union R. Co., 648 F.2d 905, 913 (3d Cir. 1981) (citation
omitted) (noting in analogous context that arbitrators selected by partisan contestants in
an arbitration are not intended to be “neutral”); Merit Ins. Co. v. Leatherby Ins. Co., 714
F.2d 673, 679 (7th Cir. 1983) (“parties ... choose their method of dispute resolution, and
can ask no more impartiality than inheres in the method they have chosen.”). We
therefore reject Arco’s suggestion that the award violated public policy.
Nor may Arco now be heard to argue that Emricko’s presence on the JCC
amounted to “evident partiality” supporting vacatur of the JCC’s award under the Federal

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1Section 10 of the Federal Arbitration Act permits an arbitration award to be
vacated “[w]here there was evident partiality or corruption in the arbitrators[.]” 9 U.S.C.
§ 10(a).
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Arbitration Act.1 It is undisputed that Arco failed to object to Emricko’s selection to
serve as one of Local 31's JCC representatives even though it (Arco) had full knowledge
of Emricko’s identity and full opportunity to object to his selection. Arco’s voluntary
choice to go forward with Emricko on the JCC panel constituted a waiver of any “evident
partiality” challenge to the panel. See Kiernan v. Piper Jaffray Cos., 137 F.3d 588, 593
(8th Cir. 1998); cf. Union R. Co., 648 F.2d at 913-14 (“When the reasons supporting an
objection are known beforehand, a party may not wait to make an objection to the
qualifications of a Board member until after an unfavorable award has been made.”)
(citation omitted).
We therefore will affirm the judgment of the District Court.

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