Labor Relations Division of Construction Industries of Massachusetts, Inc. v. International Brotherhood of Teamsters, Local 379

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2122
LABOR RELATIONS DIVISION OF CONSTRUCTION
INDUSTRIES OF MASSACHUSETTS, INC., ET AL.,
Plaintiffs-Appellees,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFERS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL #379,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Breyer,* Chief Judge,
Coffin, Senior Circuit Judge,
and Torruella, Circuit Judge.
Paul F. Kelly, with whom Anne R. Sills and Segal, Roitman &
Coleman were on brief for appellant.
John D. O'Reilly III, with whom O'Reilly & Grosso was on
brief for appellees.
July 19, 1994
* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. 46(d).
TORRUELLA, Circuit Judge. The circumscribed role of
federal courts reviewing arbitration awards in labor contract
disputes is now well established. As the Supreme Court found in
United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36-
45 (1987), courts must resist the temptation to substitute their
own judgment about the most reasonable meaning of a labor
contract for that of the arbitrator and avoid the tendency to
strike down even an arbitrator's erroneous interpretation of such
contracts. Instead, courts must confine themselves to
determining whether the arbitrator's construction of the contract
was in any way plausible.
The issue in this case is whether any plausible reading
of a collective bargaining agreement supports an arbitrator's
ruling in a dispute over fringe benefit contributions.
Plaintiffs-appellees, J.M. Cashman, Inc. and R. Zoppo Co., Inc.
(the "plaintiffs" or "Cashman and Zoppo"), challenged the
arbitration order, which favored the defendant-appellant,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of American, Local 379 (the "Union"), in the district
court. The district court vacated the arbitration award and
remanded the dispute to the arbitrator for a new resolution of
the case. Because we find that the district court stepped
outside of its highly circumscribed role of assessing the
plausibility of the arbitrator's interpretation of the agreement
between the parties, we reverse the court's holding.
Nevertheless, we agree with the district court that the case
-2-
should be remanded to the arbitrator for resolution of a related
issue of federal law.
I. BACKGROUND
This case arises out of the arbitration of a dispute
between the Union and a group of contractor-employers, including
plaintiffs Cashman and Zoppo, involved in the construction of
waste water treatment facilities in Boston Harbor (the "Boston
Harbor Project"). On March 2, 1992, the Union filed grievances
against Cashman, Zoppo, and six other project employers, claiming
that truck drivers on the Boston Harbor Project who owned and
drove their own trucks, so called "owner-operators," should
receive certain fringe benefit contributions that the employers
were already paying on behalf of other Boston Harbor Project
employees. The grievances asserted that the Boston Harbor
Project Labor Agreement ("Project Agreement"), signed by the
Union and the employers, required that the same "health and
welfare contributions and all pension contributions" made on
behalf of other employees must also be made on behalf of the
owner-operators.
The employers claimed that they did not have to pay
fringe benefits on behalf of owner-operators because the contract
did not require it and, more importantly, because the Union and
many of the employers had a long-standing practice of not paying
such owner-operator benefits going back at least twenty-six
years. According to the employers, this practice was established
after the Union and certain employer-contractors on a number of
-3-
state construction projects (not including Cashman and Zoppo
themselves) agreed that, to the extent a nucleus of owner-
operator truck drivers would be present on any individual
construction project, the employers would not be required to pay
fringe benefits for the owner-operators. The employers working
on the Boston Harbor Project, who were required to sign the
Project Agreement in order to bid initially on the work, see
Building & Constr. Trades Council v. Associated Builders &
Contractors, Inc., 113 S. Ct. 1190 (1993), rev'g, 935 F.2d 345(1st Cir. 1991) (en banc), maintained that they expected this
established practice to continue as in previous projects.
Cashman and Zoppo, however, had never entered into a contractual
relationship with the Union before the Boston Harbor Project.
Consequently, no past practices had been established between the
Union and the plaintiffs themselves.
Pursuant to the Project Agreement, the dispute over the
fringe benefits was brought before an arbitrator for resolution.
On January 20, 1993, the arbitrator found in favor of the Union
and ordered the plaintiffs and the other employers to pay,
retroactively, post-grievance benefits and to pay future fringe
benefit contributions on behalf of the owner-operator truck
drivers. In his accompanying opinion, the arbitrator explained
that certain provisions of the Massachusetts Teamsters' Heavy
Construction Agreement ("Teamsters Agreement"), which was
incorporated into the Project Agreement, in conjunction with the
Project Agreement itself, explicitly obligated employers to make
-4-
health insurance and pension contributions on behalf of the
owner-operators in question.
At issue in this appeal is the arbitrator's finding
that the past practice of not paying the fringe benefits for
owner-operators did not bind the parties in this case because the
Project Agreement "wiped the slate clean" of such past practices.
The arbitrator relied on the following language in the preamble
of the Project Agreement to support his finding:
No practice, understanding or agreement
between a Contractor and a Union party
which is not explicitly set forth in this
Agreement shall be binding on any other
party unless endorsed in writing by the
Project Contractor.
By interpreting this language as negating all past practices and
understandings not explicitly set forth within the Project
Agreement, the arbitrator disregarded the voluminous evidence
presented by the employers of the established practice of
excluding owner-operators from fringe benefit contributions. As
a result, the language of the Project Agreement granting such
benefits was found to be controlling.
Also at issue on appeal is the related question of
whether the owner-operator truck drivers are independent
contractors or employees. If they are independent contractors,
Section 302 of the Labor Management Relations Act ("LMRA"), 29
U.S.C. 186, would prohibit fringe benefit payments on their
behalf. The arbitrator acknowledged that the employers had
argued that fringe benefit payments for the owner-operators would
be illegal under Section 302, but he made no explicit legal or
-5-
factual findings on the issue in his opinion. While a rejection
of the employers' contention was implicit in the arbitrator's
award favoring the Union, nothing indicates that the arbitrator
actually determined whether the owner-operators were employees or
independent contractors for purposes of the LMRA.
Following the entry of the arbitrator's award, Cashman
and Zoppo filed a complaint in the district court on February 19,
1993, requesting that the court vacate the award. On summary
judgment, the district court held that the arbitrator had
impermissibly exceeded his authority by misapplying the plain and
unambiguous language of the Project Agreement preamble concerning
past practices, thereby failing to duly consider the evidence
that the parties had a practice of not paying fringe benefits for
owner-operators. The district court found that the past
practices provision of the preamble -- particularly the words,
"no practice . . . shall be binding on any other party" (emphasis
added) -- clearly and unambiguously meant that established
practices between parties A and B are not meant to bind outside
party C. The court found that the phrase could not reasonably be
interpreted to mean that all established practices, even those
between parties A and B, are completely wiped out by the Project
Agreement. Consequently, the court held that the Union could
still be bound by the past practice of not requiring fringe
benefit contributions for owner-operators. The district court
vacated the arbitrator's award and remanded the case to the
arbitrator to determine the merits, giving proper consideration
-6-
to the evidence of past practices.
The court also left for the arbitrator the issue of
whether, in light of the court's holding that past practices
could be considered, the owner-operators are independent
contractors, thus rendering the payment of benefits on their
behalf illegal.
II. ANALYSIS
A. Standard Of Review
It is well established that federal court review of
labor arbitral decisions, particularly on matters of contract
interpretation, is extremely narrow and "extraordinarily
deferential." Dorado Beach Hotel Corp. v. Uni n de Trabajadores
de la Industria Gastron mica Local 610, 959 F.2d 2, 3-4 (1st Cir.
1992); see, e.g., Misco, 484 U.S. at 36-45 (1987); Berklee
College of Music v. Berklee Chapter of Mass. Fed. of Teachers,
Local 4412, 858 F.2d 31, 32 (1st Cir. 1988), cert. denied, 493
U.S. 810 (1989). The court may not supplant the arbitrator's
determination of the merits of a contract dispute, even if it
finds that determination to be erroneous. Rather, the court's
task is limited to determining if the arbitrator's interpretation
of the contract is in any way plausible. Misco, 484 U.S. at 36-
38; United Steelworkers of America v. Enterprise Wheel & Car
Corp., 363 U.S. 593, 599 (1960) ("[S]o 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."); El Dorado Technical Servs.,
-7-
Inc. v. Uni n General de Trabajadores de Puerto Rico, 961 F.2d
317, 319 (1st Cir. 1992) ("[A] court should uphold an award that
depends on an arbitrator's interpretation of a collective
bargaining agreement if it can find, within the four corners of
the agreement, any plausible basis for that interpretation.");
Dorado Beach, 959 F.2d at 4; Bacard Corp. v. Congreso de Uniones
Industriales de Puerto Rico, 692 F.2d 210, 211 (1st Cir. 1982).
"[A]s long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his
authority, that a court is convinced he committed serious error
does not suffice to overturn his decision." Misco, 484 U.S. at
38.
Only in a few, exceptional circumstances are courts
able to vacate an arbitration award. When an arbitrator has
exceeded his authority by ignoring the clear and unambiguous
mandates or plain language of the contract or by construing the
contract in a way that cannot possibly be described as plausible
or rational, a court can overturn the arbitrator's judgment.
Misco, 484 U.S. at 38 (an arbitrator's award "must draw its
essence from the contract and cannot simply reflect the
arbitrator's own notions of industrial justice"); Dorado Beach,
959 F.2d at 4; Air Line Pilots Ass'n Int'l v. Aviation Assocs.
Inc., 955 F.2d 90, 93 (1st Cir.), cert. denied, 112 S. Ct. 3036(1992); Strathmore Paper Co. v. United Paperworkers Int'l Union,
900 F.2d 423, 426 (1st Cir. 1990); Georgia-Pacific Corp. v. Local
27, United Paperworkers Int'l Union, 864 F.2d 940, 944 (1st Cir.
-8-
1988).
We reject plaintiffs' contention that our review of the
district court's vacation of an arbitration award, based on an
alleged impermissible interpretation of a contract, is made under
the clearly erroneous standard. In this case, all deference is
due to the arbitrator's interpretation of the contract, not to
the interpretation of the district court. The district court
ruled that the arbitrator exceeded his authority as a matter of
law by ignoring plain and unambiguous language in the contract.
We review this finding de novo and make our own determination,
according to the standards described above, of whether the
arbitrator's application of the contract was plausible. See,
e.g., Upshur Coals Corp. v. United Mine Workers, Dist. 31, 933
F.2d 225, 228 (4th Cir. 1991); Delta Queen Steamboat Co. v.
District 2 Marine Engs. Beneficial Ass'n, 889 F.2d 599, 602 (5th
Cir. 1989), cert. denied, 498 U.S. 853 (1990); see also Berklee,
858 F.2d at 32-34 (vacating district court's reversal of
arbitrator's interpretation of labor contract without affording
deference to the district court's findings); Bacard , 692 F.2d at
211-14 (implicitly applying de novo review in vacating district
court's finding that arbitrator erroneously interpreted
collective bargaining agreement).
B. The Past Practices Clause
With this circumscribed standard for reviewing
arbitration awards in mind, there is little question that the
arbitrator's interpretation of the Project Agreement -- at least
-9-
to the extent that he found that the past practices clause bars
consideration of the plaintiffs' evidence of prior fringe benefit
arrangements -- must be upheld as a plausible reading of the
contract. This result is compelled because the arbitrator's
holding comports with the district court's own interpretation of
the past practices clause when properly applied to the facts of
this case. Thus, even if the arbitrator exceeded his authority
in finding that the past practices clause wiped the slate clean
of all established practices between all parties, an issue we do
not decide, he certainly did not exceed his authority by wiping
the slate clean between the Union and the plaintiffs in this
particular case.
The district court apparently failed to consider the
possibility that plaintiffs in this case are "other parties" and
therefore not privy to the past practice of excluding owner-
operators from the payment of fringe benefits. According to the
district court, the plain language of the past practices
provision in the preamble provides merely that past practices
established between parties A and B shall not be binding on party
C, although they will continue to be binding on A and B
themselves. Applying this interpretation to the present case
reveals that fringe benefit practices between the Union and other
employer-contractors (parties "A" and "B" respectively) are not
binding on the plaintiffs (both party "C's"), who did not have an
established past practice with the Union and are thus "any other
parties" under the past practices clause. As a result, the
-10-
contract could be read to require the arbitrator to ignore
evidence of past practices between the Union and other parties
when applying the provisions of the Project Agreement to disputes
between the Union and the plaintiffs. Because such an
interpretation is a plausible one, we must reverse the district
court's vacation of the arbitration ruling with respect to the
arbitrator's construction of the Project Agreement.
The plaintiffs take issue with such an application of
the past practices clause to the facts of this case. They argue
that because the Union itself was privy to the practice of not
requiring fringe benefit payments for owner-operators, the Union
can still be held to that practice, regardless of the fact that
plaintiffs cannot in any way be bound by such a practice.
Plaintiffs point to the language of the clause, which states that
"[n]o practice . . . between a Contractor and a Union party . . .
shall be binding on any other party," to argue that the clause
itself concerns only the effects of past practices on new parties
to the project agreement but in no way limits the effect of past
practices on the Union itself.
The plaintiffs' interpretation is certainly reasonable,
but, for our purposes, it is also irrelevant. Our task is to
determine whether the arbitrator exceeded his authority by
failing to apply the contract in a plausible manner, not to seek
out the most reasonable meaning of the contract. Interpreting
the past practices clause to bar consideration of plaintiffs'
evidence of past practice in this case is clearly plausible. The
-11-
clause can be read to preclude application of all established
past practices to "any other party," even if that practice is in
the "other party's" favor. Such a reading stems from one of
several plausible constructions of the language in the clause:
(1) no practice between parties A and B shall be binding between
parties A and C; (2) practices not binding on party C are
likewise unavailable to C for use against parties A or B (i.e., C
is not entitled to rely on or benefit from a practice which is
not binding on itself); and (3) no practice shall be binding
unlessalreadyestablished betweenaUnion andaparticular contractor.
In this case, the arbitrator could plausibly find that
the practice of excluding fringe benefits for owner-operators,
established between the Union and other contractors, is not
binding between the Union and the plaintiffs. Alternatively, the
arbitrator could find that plaintiffs cannot benefit from the
past fringe benefit practice because each plaintiff is an "any
other party" and thus could not be bound by the practice were it
beneficial to the Union instead of to the employer.
Plaintiffs protest that we cannot now employ such
reasoning to retroactively salvage an otherwise unsustainable
arbitration award. They point out that even if the Union's
interpretation of the past practices clause is plausible, the
arbitrator did not arrive at that interpretation himself, but
instead, arrived at an interpretation that ignored the plain
language of the contract. The arbitrator found that the past
practices clause wiped the slate clean of all practices between
-12-
all parties, not just practices between parties A and C as
discussed above. The arbitration award cannot be upheld,
plaintiffs argue, on the basis of an interpretation of the
contract that the arbitrator did not even make, because, in this
case at least, the arbitrator might have come to a different
conclusion as to whether past practice evidence could be
considered if he adopted the district court's interpretation of
the past practices clause at the time of his decision.
We see no problem with upholding the arbitrator's
decision on grounds or reasoning not employed by the arbitrator
himself. To begin with, an arbitrator has no obligation to give
his or her reasons for an award. Raytheon Co. v. Automated
Business Sys., 882 F.2d 6, 8 (1st Cir. 1989). Once an arbitrator
chooses to provide such reasons, courts should upset the award,
or remand for clarification, only when "the reasons that are
given strongly imply that the arbitrator may have exceeded his or
her authority." Randall v. Lodge No. 1076, 648 F.2d 462, 468
(7th Cir. 1981); see also Cannelton Indus. v. District 17, UNWA,
951 F.2d 591, 594 (4th Cir. 1991) (remanding portion of
arbitration award because it may have been based on a grant of
punitive, as opposed to compensatory, damages, in which case the
award did not draw its essence from the contract). Absent a
strong implication that an arbitrator exceeded his or her
authority, the arbitrator is presumed to have based his or her
award on proper grounds. Saturday Evening Post Co. v. Rumbleseat
Press, Inc., 816 F.2d 1191, 1197 (7th Cir. 1987); see also
-13-
Chicago Newspaper Publishers' Ass'n v. Chicago WEB Printing
Pressman's Union, 821 F.2d 390, 394-95 (7th Cir. 1987) ("'[i]t is
only when the arbitrator must have based his award on some body
of thought, or feeling, or policy, or law that is outside the
contract . . . that the award can be said not to 'draw its
essence from the collective bargaining agreement.''") (quoting
Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 185 (7th Cir.
1985)) (emphasis in original).
In this case, despite the arbitrator's allegedly
erroneous reasoning, there is nothing to indicate the arbitrator
exceeded his authority by not "arguably construing or applying
the contract." Misco, 484 U.S. at 38; see General Teamsters,
Auto Truck Drivers & Helpers, Local 162 v. Mitchell Bros. Truck
Lines, 682 F.2d 763 (9th Cir. 1982) (upholding arbitrator for
"doing the right thing for the wrong reason"). The arbitrator's
interpretation of the past practices clause in the preamble as
precluding the use of past practice evidence in determining
plaintiffs' obligations under the Project Agreement is a
plausible interpretation of the contract and as such, must be
upheld. El Dorado, 961 F.2d at 319. The fact that the
arbitrator's "wipe-the-slate-clean" construction of the past
practices clause might indicate that the arbitrator exceeded his
authority if he had applied that construction to other parties
not present in this litigation does not mean that he might have
exceeded his authority in this particular case. Rather, we know
the arbitrator did not exceed his authority because his
-14-
application of the past practice clause to the plaintiffs' claims
drew its essence from the collective bargaining agreement.
Therefore, we need not speculate how the arbitrator might have
resolved this case had he considered the district court's
construction of the contract language at issue.
C. Section 302 of the LMRA
Unlike the dispute over the Project Agreement, the
issue of whether fringe benefit contributions on behalf of the
owner-operators is illegal under federal law does not involve the
same type of circumscribed judicial review that we afford
arbitration decisions grounded in interpretations of a contract.
Although the arbitrator's factual findings regarding the status
of the owner-operators under Section 302 of the LMRA, 29 U.S.C.
186, may deserve a certain amount of deference, the issue of
illegality is ultimately one for federal court review. Misco,
484 U.S. at 42-43. Given that a determination under 302 could
have criminal consequences, the plaintiffs deserve a thorough
judicial review of an arbitrator's decision as to this issue.
Neither party disputes that the plaintiffs' payment of
fringe benefits on behalf of the owner-operators is illegal under
302 if the owner-operators are independent contractors rather
than employees. The parties do disagree, however, on whether the
issue was properly decided by the arbitrator and, if not, how the
issue should now be resolved. The plaintiffs argue that the
arbitrator did not properly decide the issue and that we, or the
district court, should find that the owner-operators are
-15-
independent contractors, effectively nullifying the arbitration
award. The Union argues that the arbitrator correctly found that
the owner-operators were employees and that we should uphold this
finding.
The arbitrator did, at the very least, implicitly
decide the 302 issue by granting an award in favor of the
Union. However, we are not satisfied that the arbitrator
conducted the appropriate statutory analysis for making the
required factual determination of the owner-operator's status.
Distinguishing between employees and independent contractors for
purposes of the LMRA is governed by general principles of agency
law. National Labor Relations Bd. v. Amber Delivery Serv., Inc.,
651 F.2d 57, 60 (1st Cir. 1981). Courts have spelled out a
number of factors to be considered in making the determination of
a party's status, including various indicia of the employer's
"right to control" certain aspects of that party's work. Amber,
651 F.2d at 61; Construction, Bldg. Material, etc., Local No. 221
v. National Labor Relations Bd., 899 F.2d 1238, 1240 (D.C. Cir.
1990); North Am. Van Lines, Inc. v. N.L.R.B., 869 F.2d 596, 599-
600 (D.C. Cir. 1989); H. Prang Trucking Co. v. Local Union No.
469, 114 L.R.R.M. 3617 (D.N.J. 1983). Although the intent of the
parties when they entered into a contractual relationship may be
relevant to determining an employer's "right to control" or to
other aspects of the agency test, no one factor is decisive.
Todd v. Benal Concrete Constr. Co, 710 F.2d 581, 584 (9th Cir.
1983), cert. denied, 465 U.S. 1022 (1984); Amber, 651 F.2d at 61
-16-
(citing N.L.R.B. v. United Ins. Co, 390 U.S. 254, 258 (1968)).
Rather, all of the incidents of the relationship between the
employer and the alleged employee must be assessed. Amber, 651
F.2d at 61.
Given the arbitrator's exclusive focus on the past
practices issue and on provisions of the contract dealing with
fringe benefit contributions, we have serious doubts that the
arbitrator actually conducted a proper 302 agency test analysis
in this case. There is no reason to believe, as the Union seems
to suggest, that the arbitrator's decision regarding the past
practices clause, which we uphold in this opinion, is dispositive
not only of the underlying contractual dispute, but of the 302
issue as well. Past practices are only one facet of the complete
agency test under 302. Consequently, the arbitrator's
discussion of the Project Agreement and the import of past
practices concerning the owner-operators, while relevant to the
parties' intended working relationship and thus to the status of
the owner-operators in this case, is not itself sufficient to
convince us that a complete 302 agency test analysis was
undertaken. We cannot, therefore, defer to the arbitrator's
implicit factual finding on the owner-operators' status to uphold
the arbitration award until a more complete 302 analysis is
conducted.
We are not prepared, however, to conduct that analysis
ourselves without first giving the arbitrator the opportunity to
reexamine the factual circumstances of this case. Plaintiffs
-17-
asserted in their action before the district court that the
arbitration award is unenforceable because it violates federal
law. The district court declined to review this claim because
the court vacated the arbitration award on the issue of past
practices. Because we now reverse the district court's ruling,
we are left with plaintiffs' 302 allegations, which have yet to
be properly adjudicated. In turn, we are not disposed toward
making factual findings in the first instance, given the absence
of explicit factual findings from the district court or the
arbitrator, that are required for a proper determination of the
owner-operators' status. Although a largely uncontradicted
record exists in this case that would allow us to resolve the
302 issue if we needed to, we consider ourselves too far removed
from the dispute to properly weigh the various factors involved
in this fact-intensive determination. In other words, we refuse
to uphold the arbitrator's finding because plaintiffs have raised
a claim meriting federal judicial review yet we, as a federal
appeals court, are not in a suitable position to conduct that
review.
Unfortunately, the district court is in the same
position that we are in with respect to determining the status of
owner-operators. Consequently, we decline to remand the case
directly to the district court for a resolution of the 302
issue. The district court itself chose to remand the proceedings
instead of deciding the merits of the case and we think it is the
court's prerogative to do so. Although federal courts have a
-18-
duty to scrutinize such federal issues with potential criminal
consequences, the arbitrator can play an important role in
providing first-hand factual findings for the benefit of the
reviewing court. Therefore, we remand this case to the
arbitrator for a separate determination of the status of the
owner-operators under 302.
The plaintiffs do not dispute our authority to remand
actions to the arbitrator; however, they claim it is
inappropriate to do so when the issue on remand is one of federal
law. We disagree with their contention that it is inappropriate
for an arbitrator to apply federal statutes. On the contrary, it
is well established that certain statutory claims may be decided
through arbitration. See Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 26 (1991); Page v. Moseley, Hallgarten,
Estabrook & Weeden, Inc., 806 F.2d 291, 295 (1st Cir. 1986). We
see no reason why the arbitrator cannot make the factual findings
necessary to resolve the 302 issue in this case. Determining
the status of owner-operators is particularly within the
arbitrator's domain since it involves analyzing various aspects
of the working relationship between the parties. Such a
determination involves consideration of precisely the type of
issues that the parties originally agreed to refer to the
arbitrator under the arbitration clause of the Project Agreement.
We do, nevertheless, retain jurisdiction so that the district
court can review the final determination of the arbitrator, if
requested to do so by one of the parties.
-19-
On remand, we expect the arbitrator will conduct the
appropriate agency test analysis as described in the relevant
caselaw. See, e.g., Amber, 651 F.2d at 60-61; Local No. 221,
899 F.2d at 1240; North Am. Van Lines, 869 F.2d at 599-600;
Prang, 114 L.R.R.M. at 3617-19; see also Restatement (Second) of
Agency 220 (1957). We leave it to the arbitrator to decide
what effect, if any, the past practices clause of the Project
Agreement and the evidence of past practice regarding the
treatment of owner-operators has on his determination of the
owner-operators' status under 302. Although we upheld the
arbitrator's interpretation of the contract as barring
consideration of past practices in resolving contractual
disputes, we express no opinion on how the past practices clause
in the contract and the evidence of past practices figure into
the various factors enumerated under the agency test used to
ascertain a party's status under 302.
Accordingly, we reverse the district court's judgment
vacating the arbitration award and remand this case to the
district court with instructions to remand the case to the
arbitrator for further proceedings consistent with this opinion.
-20-